Anil Kumar vs Sain Dass

Although the respondents were served through publication, they are not present. They are therefore set exparte.

This matter arises out of an order passed by the District Judge, Jammu on 7.7.1992. A short but important point of law has been raised in this revision by Mr. J.S.Kotwal Briefly stated, the facts which gave rise to this revision are that the petitioner filed a suit before the court of Munsiff Jammu, which was dismissed. He took an appeal to the District Judge, where the judgment of the trial court was reversed and the suit was decreed. He filed an application for execution of the decree before the District Judge on 2.2.1991 which was decided on 7.7.1992 on a preliminary objection raised by the respondent. The objection taken before the District Judge was that all execution applications must be made in the court in which the suit was filed, and the appellate court had no jurisdiction to execute a decree, even after it had been passed in appeal by the appellate court. The fate of this revision rests upon the interpretation that will be placed on Section 37 of the Code of Civil Procedure. Mr. Kotwal submits that .there is no direct judgment on the point as to whether an appellate court which passes a decree in the matter in appeal, has the jurisdiction to execute a decree or not? However, he has relied upon two judgments of the Supreme Court, which may help this court in interpreting Section 37 of the Code of Civil Procedure. Section 37 is reproduced hereinbelow:

Defection of Court which passed a decree. The expression court which passed a decree, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance, and

(b) where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. Explanation. The Court of first instancedoes not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that court to the jurisdiction of any other Court; be in every such case, such other court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.

From the perusal of aforesaid provision of law, it appears that the intention of Legislature was to give the power of execution to the appellate court, which passes a decree in appeal and also to the trial court which tries the suit in the first instance.

The section itself envisages that court which passed a decree would include a court of the First instance. It doesn't exclude the jurisdiction of the Appellate Court which passed the decree, but it only enlarges the scope of laying down that even if a decree is passed by an Appellate Court in appeal, the decree can be executed by the court of first instance also. This mode of thinking gets further strengthened by the fact that Sub Section

(2) of Section 39 CPC lays down. The court which passed a decree may of its own motion send it for execution to any Subordinate Court of competent jurisdiction. Whenever a decree is a passed by an Appellate Court in an appeal, the fact remains that the decree is passed by the Appellate Court. Sub Section (a) of Section 37 includes the court of first instance in the definition of court which passed a decree, only to facilitate the execution of decree by such court also. While interpreting the words "shall include", the Supreme Court in a judgment reported in SIC (1991)

3 SCC page 617 has held the word "include", in statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occuring in the body of the statue. Similarly, "shall include" was also interpreted in the judgment reported in AIR 1972 SC page

The Supreme Court observed "The word" includes is often used in interpretation clauses in order to enlarge the meaning of the words or the phrases occuring in the body of the statue. When it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things\which the interpretation clause declares that they shall include"". The word include"" is also susceptible of other constructions which it is unnecessary to go into.

From the definition of Section 37 of the Code of .Civil Procedure in the light of the meaning given to the word "shall include" by the Supreme Court, it becomes clear that the court which passed the decree; whether it is the original court or an Appellate Court, has the primary jurisdiction for execute its own decree. But for the convenience by legal fiction, if the decree has been passed by an Appellate Court, the court of first instance can also execute the decree. In any case, Section 37 does not exclude the jurisdiction of the Appellate Court to execute the decree passed by it in an appeal. The better course for the District Judge was either to proceed itself/ with the execution in accordance with law or to transfer it to the court of first instance in terms of Section 39 of the Code of Civil Procedure.

For the reasons given above, I set aside the order of the learned District Judge dated: 7.7.1992.The file be sent back to the learned District Judge with the direction either to proceed in the matter in accordance with law and decide the execution application on merits; or in case he deems it proper, to transfer it to the court of first instance, for doing the needful.