TMI Blog1971 (5) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Sub Judge sent the application under Order 9 Rule 13 Civil Procedure Code moved by Arjan Singh to the High Court on the ground that he had no jurisdiction to take further proceedings in the application after the provisions of the Delhi High Court Act had come into operation. On September 19, 1967 the Deputy Registrar of this Court registered the application of Arjan Singh and ordered notice to the Union of India for 20-10-1967. (2) The Union of India filed a reply to the application and, inter alia, raised the plea of limitation, Om Parkash, J. on 19-12-1967 framed an issue on the application of Arjan Singh as to whether the same was within time. The Union of India also filed a reply to the objections filed by Arjan Singh against the execution application moved by Union of India. S. N. Andley, J. framed an issue in the execution proceedings as to whether the objections of Arjan Singh were competent and also clarifying the issue framed on the application of Arjan Singh under Order 9 Rule 13 of the Code of Civil Procedure as to whether the application for setting aside the ex parte decree was within time. Both these matters came up before me, when two points arose for consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings pending on 31-10-1966 as falling within the ambit of proceedings which stand transferred to the High Court by virtue of Section 16 of the Delhi High Court Act, if the same were pending before a Subordinate Judge on 31-10-1966- (4) As the matter was of some importance we requested Mr. Shyam Kishore, Advocate to assist the Court and he agreed to appear amicus curiae. We must express our great appreciation for the assistance that he has rendered us and compliment both him and Mr. B. N. Kirpal who appeared for Union of India on their industry as well as fairness with which they have argued the matter. (5) Before I proceed to discuss the various cases cited before us it will be necessary to read a few provisions of the Delhi High Court Act, 1966 and the Code of Civil Procedure. The only three provisions of the Delhi High Court Act, which are relevant for our purpose are Sections 5, 16 and 19. These read as under:- S. 5(1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union territory of Delhi, all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day, is ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. Section 150. Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred. Ordered Rule 13 : In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as those respectively conferred and imposed by or under the Code upon the court from which the business was so transferred. On a reading of sub-section (2) of Section 5 of the Delhi High Court Act, the legislative intent is absolutely clear that what was transferred to the High Court was the business of the subordinate Courts in suits of the valuation of more than twenty five thousand rupees. Obviously, when a Court ceases to have pecuniary jurisdiction to entertain or try a suit and cannot pass any decree therein, it cannot also entertain or adjudicate upon an application to set aside the decree it passed when it did have jurisdiction to try a suit the valuation of which was more than rupees twenty five thousand. (10) Words similar to those found in Order 9 Rule 13 also occur in Order 47 Rule I where an application for review of judgment is provided to the Court which passed the decree or made the order. It cannot be said by any stretch of imagination that a court which has ceased to have pecuniary jurisdiction to try a suit could by review of its previous judgment pass a decree in a suit of the valuation of more than twenty five thousand rupees which it had previously dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to execute the decree passed by the Subordinate Judge of Kakinada. When the suit, in which the decree was passed, was instituted, the District Court East Godavari had jurisdiction over the properties which were the subject matter of the second suit. In this view of the matter the Supreme Court held as under :- THE next question for. consideration is whether the present suit was filed in a Court which had jurisdiction to execute the decree in O.S. No. 25 of 1927. That was a decree passed by the Subordinate Judge of Kakinada, whereas the present suit was filed in the District Court, East Godavari to which the Court of the Subordinate Judge of Kakinada is subordinate. ' Section 38, Civil Procedure Code provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. The District Court of East Godavari is neither the Court which passed the decree in O.S. No. 25 of 1927 nor the Court to which it had been sent for execution. But it is common ground that when the present suit was instituted in the District Court, East Godavari, it had jurisdiction over the properties, which are the subject-matter of this suit. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the worst, be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings. That precisely is the position here. We have held that the allegations in the plaint do raise the question of excessive execution, and it was, Therefore, open to the appellant to have raised the plea that the suit was barred by Section 47, and then, there could have been no question of waiver. We have, it is true, permitted the appellant to raise the contention that the present suit is barred by Section 47, and one of the reasons, Therefore, is that the allegations in the plaint are so vague that the appellant might have missed their true import. But that is not a sufficient ground for relieving him from the consequence which must follow on his failure to raise the objection in his written statement. We agree with the decision in Air 1943 Mad 449, and hold that the objection to the District Court entertaining an application to execute the decree in O.S. No. 25 of 1927 is one that could be waived and not having been taken in the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact passed the decree. It was further observed by their Lordships that the object and the purpose of Sections 37 to 39 along with other provisions occurring part Ii is to facilitate execution of decrees. Besides the fact that a decree holder should be able to recover what has been held to be due to him by Court, it is the duty of the Courts of law to see that their orders and decrees are enforced and that these orders do not become ineffective on some technical ground if at all possible. The procedure laid down in the Civil P.C. for executing decrees is intended to facilitate and not to obstruct their execution provided that the judgment-debtor is not put to undue and unnecessary harassment. Therefore, these provisions should not be so construed as to impede execution of decrees or as to raise obstructions in the way of their execution and if it is possible these provisions should be construed to make it convenient to the decree-holders to execute their decrees. It was further observed that Section 37 and 38 when construed according to the language used therein empower the decree holder to file an execution application either in the Court that actually passed the decree or in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction of Subordinate Courts would depend upon the directions that the High Court may give under Sub-section (2) of Section 39 of the Code of Civil Procedure. (16) I may now notice some of the other cases which were cited at the Bar. In Aminuddin Mullick v. Atormoni Dasi and others A.I.R. 1920 Cal 532 a bench of the Calcutta High Court was dealing with a case where a preliminary mortgage decree for a sum of nearly Rs. 2,000.00 was obtained in the Court of Munsif who had power to try suits up to the value of Rs. 2,000.00. Subsequently the Munsif having been transferred and his successor not having been vested with powers to try suits up to that value, the final decree in the case was made by the Subordinate Judge. The decree-holder, however, applied for execution of the decree before the Munsif who had, in the meantime, been empowered to try suits up to the value of rupees two thousand. It was held that the Munsif had power to execute the decree under Section 150. (17) In J. V. Srinivasa Rao, minor by father and next friend J. V. Ranganatha Rao v. Hanumantha Rao and others, Air 1922 Mad 10 a bench of the Madras High Court was dealing with the question of jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 also the bench of the Calcutta High Court held that the Court which passed the decree continues to be the competent Court for purposes of execution, but we cannot agree, and we say it with respect with the view propounded that on redistribution of business the second Court would not have any jurisdiction within the meaning of Section 150 of the Code of Civil Procedure. (20) In Jugal Charon Mondal v. Smt. Pankajini Dasi, AIR 1961 Cal 183 , a bench of the Calcutta High Court held that the Court which competently passed a decree does not lose jurisdiction to execute it, merely by reason of loss of territorial or pecuniary jurisdiction in the meantime, though this jurisdiction to execute may mean to transfer it to the proper Court for execution having territorial and pecuniary jurisdiction in the matter. In some cases the question of transfer may arise under Section 39 of the Code but where the business of a Court or part of a business is transferred to another Court, there will be no question of transferring the decree for execution. In such a case, by virtue of the provisions of Section 38 of the Code of Civil Procedure, the Court which passed the decree originally would have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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