MANICKAM CHETTIAR Vs. RAMASWAMI CHETTIAR

JUDGEMENT

(1.) The appellant obtained a decree on 18 March 1930, for a sum of Rs, 821. On 17 April 1941, the debtor obtained a stay Under Section 20 of Madras Act 4 of 1938, and in subsequent proceedings Under Section 19 of that Act, the decree was scaled down to an amount of Rs. 307. On 16 March 1942, i.e., two days before the expiry of the twelve years period fixed in Section 48, Civil P.C., the appellant applied to the decree Court, that is to say, the Court of the Subordinate Judge of Kumbakonam, for the transfer of the decree to the Court of the District Munsif of Mayavaram for execution. This application was eventually ordered on 20 March 1942, i.e., after the twelve years period had expired. Meanwhile, however, the appellant, in anticipation of this transfer order, .had filed the present execution petition in the Court of the District Munsif of Mayavaram on 18 March 1942. The papers were actually received at Mayavaram on 28 March and the petition was dismissed as being barred Under Section 48, Civil P.C. The correctness of this order is now under consideration.

(2.) The appellant has raised a number of contentions. Firstly, he contends that the execution petition filed at Mayavaram on 18 March 1942, must be treated as having been presented on that date even though the decree had not yet been transferred to Mayavaram for execution, so that it cannot be said to be a fresh application presented after the expiration of twelve years from the date of the decree. The argument is that the section does not say "validly presented" or "presented to the proper Court." It seems to me that some such qualification must be implicit in the language and that it is impossible to contend that the presentation in a Court which has no jurisdiction is presentation at all. It is unthinkable that the decree-holder should be able to keep his decree alive by presentation of an execution petition in any Court regardless of its jurisdiction to execute the decree. I must hold that the mere handing in of this execution petition to a Court which had no jurisdiction to receive it, was not a presentation and that the presentation of the petition cannot be deemed to have taken place before the date when the executing Court had jurisdiction to receive it.

(3.) That the date of the order of transfer is the date with effect from which the transferee Court has jurisdiction has been held in Ademma V/s. Venkatasubbayya ( 33) 20 A.I.R. 1933 Mad. 627. It is suggested that the order of transfer must date back to the date of the application for transfer, so that the transferee Court would have jurisdiction even before the transfer was ordered. The contention is that it is a general rule of procedure that all judicial orders date back to the date of the initiation of proceedings. I am not aware of any such general rules No doubt there are many classes of proceedings in which the final order is deemed to take effect from the date of the initiation of the proceedings; but when we are dealing with a question of jurisdiction, it seems to me that jurisdiction cannot be in abeyance, as it would be if its eventual exercise was to depend retrospectively upon some future order. During the pendency of the transfer application, I consider that the only Court which had jurisdiction to execute the decree was the trial Court. Jurisdiction passed to the transferee Court by the order of transfer and there is no basis for holding that this order dates back to the date of the application.