LAWS(PVC)-1928-2-123

SUBRAMANYA IYER Vs. SWAMINATHA CHETTIAR

Decided On February 17, 1928
SUBRAMANYA IYER Appellant
V/S
SWAMINATHA CHETTIAR Respondents

JUDGEMENT

(1.) The facts of this appeal may be stated as follows: One Swaminatha Chettiar brought a suit on the foot of a simple mortgage in O.S. No. 33 of 1921, on the file of the Subordinate Judge's Court of Negapatam and obtained a decree for sale. The properties directed to be sold consisted of items in three schedules. Those in A and C schedules are situated in Pattukottai Taluq which was then with in the jurisdiction of the Subordinate Court of Tanjore. Those in schedule B are situated in the Mannargudi Taluq which was then within the jurisdiction of the Subordinate Court of Negapatam. As some of the properties were within the jurisdiction of the Subordinate Court of Negapatam the suit was rightly instituted there. While the suit was pending a Notification, dated September...1921, was issued by which the Districts of Tanjore was divided into two Districts-East Tanjore and West Tanjore. The jurisdictions of the Subordinate Courts were re-arranged and under this re arrangement the Mannargudi Taluq also came within the jurisdiction of the Subordinate Court of Tanjore. Thus as a result of the Notification, all the properties were within the jurisdiction, of the Subordinate Court of Tanjore and none within that of the Sub-Court of Negapatam. In spite of this, on the principle that a Court where a suit was originally rightly instituted continues to have jurisdiction over the suit even if the place where the cause of action arises ceases to be situate within its jurisdiction, the Sub-Court of Negapatam tried the suit and passed a preliminary decree in November, 1922. In the year 1923, there was a further Notification according to which Pattukottai Taluq was removed from the jurisdiction of the Sub-Court of Tanjore and was assigned to that of the District Court of East Tanjore, but Mannargudi continued to be within the jurisdiction of the Sub-Court of Tanjore. On the 6 February, 1924, a final decree was passed by the Sub-Court of Negapatam. The validity of the decree is not questioned before us, nor could it be questioned. The execution petition out of which the present appeal arises is E.P. No. 154 of 1926 filed in the Sub-Court of Tanjore by the Official Receiver of Tanjore representing the estate of Swaminatha Chetty who became an insolvent. Notices were ordered upon this petition. A notice dated the 14 August, 1926, issued to the 6 defendant was affixed to the outer-door and another notice dated 5 September, 1926, for the same defendant was received by his son. The 6 defendant did not appear when the petition came on for orders. On the 3 December, 1926, the petitioner's Vakil stated that the 9 defendant was dead and it was not known whether he left any legal representatives and hence his name might be removed from the record. On the 13 December, the Court ordered the properties to be sold and fixed the sale for the 31 January. Meanwhile, on the 2nd January, one Nagammal, alleging that the 9 defendant left a legal representative and that she was his guardian filed E.A. No. 60 of 1927, praying for the dismissal of the execution petition on the ground that the proceedings are void or, in the alternative that the fifth item in the first lot of schedule A, which belonged to the 9 defendant should be sold last. On the same day the 8 defendant filed E.A. No. 61 with a similar prayer, the second part of the prayer relating to the third item. On the 8 January, the petitioner in E.P. No. 154 filed E.A. No. 72 of 1927 praying for bringing the legal representatives of the 9th, defendant on record and E.A. No. 73 of 1927 for appointing Nagammal as his guardian. The 6 defendant then filed E.A. No. 102 of 1927, praying for leave to file his objections to E.P. No. 154 of 1926. On the 31 January, 1927, the properties in the C schedule were sold but the sale of the properties in schedules A and B was continued from day to day because of the pendency of the above said petitions. Finally on the 14 February, the Subordinate Judge passed an order referring to tie various matters pending consideration and stopping the sale observing thus

(2.) "All these must be investigated and settled before the sale proceedings can start again". He then heard arguments on the various objections mentioned above, passed an order on E.A. Nos. 72 and 73 as prayed for and overruled the objections in E.A. Nos. 60, 61 and 102. The present appeal is against this order.

(3.) The point raised before us by the 6 defendant whose objections are contained in E.A. No. 102 is that the execution of a decree of the Negapatam Sub-Court cannot be ordered by the Sub-Court of Tanjore on a petition filed before it and that it can only be ordered if the execution is transferred by the Sub-Court of Negapatam.