Muthukumara Pillai vs Thirunarayana Pillai and Another

Krishnan Pandalai, J.—This petition raises an interesting and uncommon question. When a suit for money is transferred from the Court

where it is instituted to another Court beyond that jurisdiction and a decree is obtained in that Court and then the second Court is abolished and

the whole business of that Court is sent by administrative order to a third Court, has that (third) Court jurisdiction to entertain a petition for sending

the decree for execution to the first Court or must the petition for execution be presented in the first instance to the first Court?

The facts are as follows: The suit, O.S. No. 179 of 1922. which was for money on a promissory note, was filed in the Vriddachalam Munsif''s

Court by two minor plaintiffs represented by their mother as next friend and was transferred for disposal to the Mannargudi Munsif''s Court and

there numbered as O.S. No. 633 of 1923 and a decree was passed against the petitioner-defendant. Subsequent to the decree the Munsif''s Court

of Mannargudi was abolished and its territorial jurisdiction and business were added to that of the Chidambaram Munsif''s Court. After the 1st

plaintiff became a major after decree, he and his mother quarrelled and separate petitions for execution one by the 1st plaintiff for himself and

purporting to act as next friend of 2nd plaintiff and another by his mother as next friend of the 2nd plaintiff were filed in the Chidambaram Court. In

the course of these disputes as to who was entitled to execute the decree, the 1st plaintiff stated that the whole decree was dischared by payment

to himself. This was disbelieved by the Court as collusive and the 1st plaintiff was removed from the office of next friend of 2nd plaintiff and the

mother appointed instead. At this stage the judgment-debtor raised the objection that the Chidambaram Court had no jurisdiction to entertain the

mother''s petition which was to transmit the decree for execution to the Vriddachalam Court. The objection was based on the ground that the

Mannargudi Munsif''s Court having been abolished and ceased to exist, the only Court which could execute the decree is, according to Section 37

(b) of the Civil Procedure Code, the Court where the suit would have to be brought if the suit were brought at the date of the application which is

admittedly the Vriddachalam Court as the defendant lives and the cause of action arose in that jurisdiction. The objection was overruled by the

District Munsif on the ground, as I understand it, that Section 37 (b) is not applicable to the case and that the Chidambaram Court having

succeeded to the business of the Mannargudi Court, the former Court is entitled u/s 150 to do what the Mannargudi Court, if not abolished, might

have done, i.e., to transmit the decree for execution and decide all things necessary to be decided before it is transmitted.

The Sections 37, 38 and 150 of the CPC on which this question depends have been the occasion of so many decisions that it is curious that the

learned Advocates have not been able to bring to my notice any case like the present where the suit or the decree is one for a simple money debt

without the security of Immovable property. The questions which have hitherto been the subject of decision arise where after suit and before

execution, the territorial jurisdiction over the Immovable property concerned has been changed either because the Trial Court being abolished its

territorial jurisdiction has been merged in other Courts, or because such Court being still in existence its territorial jurisdiction over the property has

been wholly or partially conferred on other Courts. In such cases it is now held that where the Trial Court still exists, it has jurisdiction at least to

entertain applications for transmitting the decree to the Court to which jurisdiction over the property concerned has been transferred. In

Sivaskanda Raju v. Raja of Jeypore ILR (1927) 50 M. 882 : 52 M.L.J. 605 the decision of the Full Bench in Seeni Nadan v. Muthuswami Pillai

ILR (1919) 42 M. 821 : 37 M.L.J. 284 was construed as recognising the powers of the Trial Court only to the extent of receiving and transmitting

execution applications to the proper Court; and it was held that Subbiah Naicker v. Ramanathan Chettiar ILR (1914) 37 M. 462 : 26 M.L.J. 189

still remains good law except to the extent it was modified by the Full Bench decision. But this limitation in the effect of the Full Bench decision was

dissertted from in Submmania Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885 where the authorities were re-examined at great length and it

was held that where the Trial Court still exists it alone has the power to execute a mortgage decree passed by it even where all the property

covered by the mortgage has been subsequently withdrawn from its jurisdiction and that Section 150 has not the effect of conferring jurisdiction to

execute such decrees on the Courts to which territorial jurisdiction is transferred unless the execution proceedings are by judicial order transferred

thereto. The conflict between the decisions of these two Benches on the effect of the Full Bench decision on the powers of the Trial Court which

has passed a mortgage decree to execute that decree after the property has been withdrawn from its jurisdiction is fundamental and can be settled

only by a Full Bench. That question does not arise in this case.

There are two matters which distinguish the present case from those above referred to and the cases cited therein. First, the present is a case

where the Trial Court has ceased to exist, and not a case where though it exists it has ceased to have jurisdiction to execute the decree which is an

idea exclusively applicable to transfers of territorial jurisdiction. Venkatasami Naik v. Sivanu Mudali ILR (1918) 42 M. 461 : 36 M.L.J. 199.

Second, the decree in question is a simple money decree, the power to execute which is not affected by any subsequent changes in the territorial

jurisdiction of the Court which heard the case. It cannot be supposed that if the Mannargudi Munsif''s Court was still in existence, it would not have

power to execute the decree though the suit was transferred to it from Vriddachalam where alone it could have been properly instituted. Such

power could be exercised either by arresting the judgment-debtor if found within its jurisdiction or by seizing any property of his in that jurisdiction

or by sending it for execution to any other Court including that of Vriddachalam.

The question for decision is whether, the Mannargudi Court having been abolished, and both its territorial jurisdiction and business before it

transferred not by judicial order under the CPC but by arrangements made by Government acting under the Civil Courts Act, to the Chidambaram

Munsif''s Court, the latter Court can entertain an application to transmit the decree for execution to another (Vriddachalam) Court which would be

possible if Section 150 applied or whether in the facts mentioned the application should be made only to the Court which would have jurisdiction

to try the suit if it was instituted at the time of the application.

If it were not for observations in Subratnania Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885 to the effect that Section 150 refers to cases

where certain specified business has been actually transferred by the order of a competent Court and do not apply to any other case (per

Ramesam, J., at pp. 891,892 and 893 and per Devadoss, J., at pp. 905, 906) this case would present no difficulty. But they were made with

reference to a case relating to Immovable property in which the Court which passed the decree was still in existence and the question for decision

was whether in such case that Court had lost its jurisdiction to execute its own decree and whether Section 150 conferred the jurisdiction in

execution to the Court to which the territorial jurisdiction was transferred. The learned judge''s observations cannot be understood as intended to

apply to simple money decrees passed by Courts which had ceased to exist and from which therefore no transfer by judicial transfer u/s 24 is

possible. It is easy to show what inconveniences and anomalies would result from applying these observations to simple money decrees of

abolished Courts the territorial jurisdiction and business of which has been, by order of Government under the Civil Courts Act, transferred to

another, probably, neighbouring Court as in this case. A suit for money may be brought in a Court within whose territorial jurisdiction either the

cause of action arose or the defendant resides. If a promissory note was executed at Benares and the executant lived at Mannargudi when the suit

was brought, but after decree the defendant left Mannargudi and went away to Nagpur and the Mannargudi Court is abolished and its business is

transferred to Chidambaram, is the decree-holder to be compelled to apply for execution to the Court at Benares or Nagpur where he would have

to sue if he were suing for the first time and is he not entitled to apply to the Chidambaram Court to attach some property of the defendant that

may be left at Mannargudi or to send the decree for execution to some other Court in this Presidency where such property may be found. I think

their Lordships scarcely intended such consequences to follow from their remarks as to Section 150. On the contrary there are weighty

observations by the learned Chief Justice and other learned Judges in the Full Bench case Seeni Nadan v. Muthuswami Pillai ILR (1919) 42 M.

821 : 37 M.L.J. 284 and by the learned Judge in Ranganatha Rao v. Hanumantha Rao ILR (1922) 46 M. 1 : 42 M.L.J. 344 and Mouna

Guruswami Naicker v. Sheik Mahommadhu Rowther I.L.R.(1922) 46 M. 83 : 43 M.L.J. 713 to the effect that Section 150 was intended to apply

not merely to cases where there was a judicial transfer of specific business but that the section was in terms wide enough to authorise the Court to

which the area had been transferred (including a fortiori the business not directly depending on territorial jurisdiction) to entertain in the first instance

any application which might have been made to the Court which passed the decree. It seems to me on the best consideration 1 can give that, in

cases like the present, that is the sound principle of construction of Section 150 and I must follow them. As pointed out by the Chief Justice in

Seeni Nadan v. Muthuswami Pillai ILR (1919) 42 M. 821 : 37 M.L.J. 284 Section 37 is an inclusive definition and must not be used so as to

deprive the decree-holder of the facility provided by Section 150.

I therefore think that the respondents application to transmit the decree was properly made to the Chidambaram Munsif''s Court and dismiss this

petition with costs.