THADAPALLI PEDDA SUBBA RAO Vs. LAVU ANKAMMA

JUDGEMENT

(1.) Mr. Venkatachari for the appellant contends that the execution petition should not have been treated by the Lower Court as one that satisfied the requirements of the law. The petition was filed by the assignee-decree-holder. It was in the form prescribed by the Code and prayed first, that the petitioner should be recognised as the assignee decree-holder; secondly, that the fact of his being so recognised should be communicated to the Kistna District Court and the Bapatla Sub-Court where the execution of the decree was being carried on; and thirdly, that concurrent execution, which had already been ordered, should be allowed to be proceeded with.

(2.) Mr. Venkatachari's contention is that, when once a decree is transmitted under Section 39 of the Code to another Court for texecution, no execution application can be made to the Court which passed the decree, until the certificate prescribed by Section 41 has been received by that Court. I am unable to follow this argument, for in principle I find it difficult to understand why the original Court is incompetent to entertain an application in the absence of the certificate under Section 41. Mr. Venkatachari says that without the certificate the Court will not be in a position to find out what the amount due to the petitioner is. He forgets that the execution application gives the necessary information and the Courts usually act on such material as is placed before them. Apart from the reason of the thing, the learned Counsel has not been able to point to any provision, which forbids the Court to entertain such an application. The cases relied upon by him do not support him in the least. I am not concerned with the correctness or otherwise of the decision in Rangaswami V/s. Sheshappa (1922) I.L.R. 47 Bom. 56. The petitioner before us is not the decree-holder as in that case but the decree- holder's assignee, and under Order 21, Rule 16 the only Court to which he is entitled to apply for execution is the original Court; in other words, the Court which passed the decree. In Maharaja of Bobbili V/s. Sree Raja Narasaraju Peda Baltar Simhulu Bahadur (1912) I.L.R. 37 Mad. 231 : 23 M.L.J. 236, after the decree had been transmitted to the Parvatipur District Munsif's Court, and certain properties had been attached by that Court, the decree-holder applied to the District Court, without asking for concurrent execution, for the sale of the properties already attached by the other Court. That course was held to be irregular, and I fail to see how the decision has any bearing upon the point we have to decide. From Maharaja of Bobbili V/s. Sree Raja Narasaraju Peda Baliar Simhulu Bahadur (1912) I.L.R. 37 M. 231 : 23 M.L.J. 236 an appeal was taken to the Privy Council and its judgment is reported in Maharajah of Bobbili V/s. Narasaraju Bahadur (1916) L.R. 43 I.A. 238 : I.L.R. 39 Mad. 640 : 31 M.L.J. 300 (P.C.). All that their Lordships held was that, as the property concerned was within the local limits of the jurisdiction of the Munsif's Court and as that property had already been attached by that Court, the District Court was not the proper Court to execute the decree by sale of that property and that the proper Court to which the application should have been made was the Munsif's Court. This case again has nothing to do with the point now raised. The judgment of Devadoss, J., in Ayyaru Pillai V/s. Varadaraja Pillai (1925) 50 M.L.J. 116 has also no bearing on the question to be decided. That case held that an application to the transferee Court by the assignee-decree-holder, to send back the decree to the original Court, is a step-in-aid of execution. I fail to see how that case is in the least relevant to the point we have to decide. We have here nothing to do with the powers of the transferee Court, the only question being, "Is the execution application made to the original Court competent or not?" I am satisfied that Mr. Venkatachari's contention is not only opposed to principle but does not receive the slightest support from the provisions of the Code.

(3.) The appeal is dismissed with costs of the assignee-decree-holder. Reilly, J.