SRI RAJAH SATRUCHERLA SIVAKANDA RAJU BAHADUR GARU Vs. SRI SRI SRI RAMACHANDRA DEO MAHARAJULAM GARU, RAJAH OF JEYPORE

JUDGEMENT

(1.) L.P.A. No. 37 of 1927: Wallace, J.: This Letters Patent Appeal is against the decision of Curgenven J., in the matter of an order by him on C.M.P. No. 3718 of 1926 dated 6 January, 1927 refusing to set aside a Court sale in execution of a mortgage decree against the appellants. The chief point raised is a question of the jurisdiction of the Sub-Court, Vizagapatam, to sell the property in execution as the property is not within its territorial jurisdiction. The learned Judge has not dealt with this point, but has merely dismissed the petition for stay.

(2.) It is not in dispute that between the date of the preliminary decree in the mortgage suit and the final decree the local area in which this property Res was taken away from the jurisdiction of the Sub-Court. The question for decision is whether in execution of the final decree the Court which passed the decree retains jurisdiction to sell the property which has passed out of its jurisdiction. This is a vexed question which has been the subject of a large number of decisions in this Court and in the Calcutta High Court. It is quite clear from the authorities in these rulings that there are two main principles of decision which are inherently irreconcilable. The first is that a Court which ordinarily has no power to sell property outside its local jurisdiction cannot gain that power merely because it has passed the decree against that property While it was within its jurisdiction; that is, there is no reason why a Court should have greater powers over property at a later stage of a suit than it had at the beginning; and the second principle is that when a Court has once got jurisdiction over property it cannot lose it. I incline to the former principle in view of the practical difficulties which will attend the acceptance of the latter. The latter view clearly to my mind implies that the Court which passed the decree never loses its jurisdiction to execute that decree and the learned vakil for the respondent goes so far as that. I shall consider the effect of that proposition from two points of view, first, whether the provisions of the Code bear it out, and second, as to the practical difficulties in working.

(3.) As to the first point, if the Court which passes the decree never loses its jurisdiction to execute it, then the contingency provided for in Section 37(b), C.P.C., of the Court of first instance losing its jurisdiction to execute a decree could not have been contemplated at all. The phrase "Court of first instance" there is obviously used in the sense of the Court which originally passed the decree--compare the use of the same phrase in Clause (a)--and was probably used to avoid employing in the definition of the phrase "Court which passed the decree" the very phrase which was being defined and also perhaps to exclude by using that phrase a Court of intermediate appeal. The respondents vakil argues that Section 37(b) is only ancillary to (a) and is brought into operation only when, there has been an appeal and a decision by the appellate Court. I cannot accept that contention which would amount to saying that the Code has made no provision for the case of the execution of a decree which has not been appealed against when the Court which originally passed the decree has ceased to exist. The learned vakil refers us to Section 150 to explain this lacuna. But apart from the improbability of the legislature relegating to a different part of the Code one aspect of the problem which was before them when Section 37 was drawn up, Section 150 in terms only applies to cases of transfer from a Court and not to cases of a Court ceasing to exist. I am of opinion therefore that the Code does not authorise the idea that a Court which originally passed a decree never loses its jurisdiction to execute it. Pressed to its logical conclusion, this argument would mean that the Court to which territorial jurisdiction has been transferred has no jurisdiction to execute, because the contingency which gives it jurisdiction to execute, namely, the ceasing of jurisdiction in the Court which originally passed the decree, will never occur. It has never been yet held so far as I know, that the Court to which territorial jurisdiction has been transferred does not have jurisdiction to execute the decree. A ruling which might be cited to the contrary, viz., Kali Pado Mukerjee V/s. Dino Hath Mukerjee (1897) ILR 25 C 315, has been explained in Jahar V/s. Kamini Debi (1900) ILR 28 C 238 to be not a real case of transfer of territorial jurisdiction. In most of the reported rulings under this Clause 37 (b) it has been taken almost for granted that the usual case to which the phrase "has ceased to have jurisdiction to execute it" applies in the case where between the date of decree and the date of execution application territorial jurisdiction over the property has passed from the Court of original trial to another Court.