MUTHUKARUPPA CHETTY Vs. PAIYA KAVUNDAN

JUDGEMENT

(1.) This is an appeal by a decree-holder against the decision of the lower appellate Court passed at the instance of the judgment-debtor, here respondent and setting aside the decision of the District Munsif of Namakkal that he had jurisdiction to execute the decree.

(2.) The decree was passed on the small cause side and it is urged first that no Second Appeal lies. That objection must be sustained. But we have been asked to treat the appeal as an application in revision. We think that we are entitled to do so. It is contended that the lower appellate Court did not decline jurisdiction or assume jurisdiction which it had not but simply made a mistake in a question of law relating to jurisdiction. That view is not in our opinion correct. The lower appellate Court held that the District Munsif has no jurisdiction to allow execution and it has dismissed the execution application on the ground that it was made to a Court not having jurisdiction. We think that, in doing so, it declined jurisdiction within the meaning of Section 115.

(3.) On the merits, the question arises from the transfer of the area in which the judgment debtor lives, from the jurisdiction of the Principal District Munsif of Salem who passed the decree sought to be executed to that of the District Munsif Namakkal in whose Court the application for execution has now been made. It is urged that only the former Court has ever had jurisdiction to execute the decree and that the decree-holder's proper course is to apply for a transfer of the decree to Namakkal. That contention is inconsistent with the decision in Seem Nadan V/s. Muthuswami Pillai I.L.R. 42 M. 821 : 37 M.L.J. 284. We are asked to distinguish that decision on the ground that it relates to the execution of a decree for sale of immoveable property. But we can find nothing in the language used in the judgments there to show that such a distinction was in the minds of the learned judges or that they were considering the question except as it was referred to them, perfectly generally. It may he noted that the previous case in connection with which the reference was made, Subbiah Nayakar V/s. Ramanathan Chettiar (1914) I.L.R. 37 M. 462 : 26 M.L.J. 189, related to a money decree; and if this distinction had been thought material, it is difficult to believe that nothing would have been said regarding it. We are not able, on principle, to see why it should be material and we do not think it necessary to add anything on the question of principle to the judgments of the Full Bench or in particular to the very clear statement of law contained in the judgment of Ayling, J.