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TMI Blog1932 (1) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Melur Court. The Melur Court has always continued to exist. The District Munsif of the Madura Taluk Court, following the decision of myself and Devadoss, J. in Subramania Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885 held that until the decree was transmitted by the Melur Court the Taluk Court cannot execute the decree. 2. He therefore dismissed the application. On appeal the District ' Judge of Madura refused to follow our decision on the ground that the decision of the Full Bench in Seeni Nadan v. Mitlhu-sami Pillai (1919) I.L.R. 42 M. 821 : 37 M.L.J. 284 (F.B.) contained an expression of opinion to the contrary which he preferred and, reversing the decision of the District Munsif, remanded the application to the Lower Court for disposal according to law. The judgment-debtor files this second appeal. 3. When this second appeal came on for hearing before our brother Jackson, J., he found not: only that there was some conflict of opinion between the decision in Subramania Aiyar v. Szvaminatha Chettiar (1928) 28 L.W. 885 and the Full Bench judgment in Seeni Nadan v. Muthusami Pillai (1919) I.L.R. 42 M. 821 : 37 M.L.J. 284 (F.B.) but also that there was some other con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt which, passed a decree" in Section 37. But assuming" for a moment that this distinction in the two meanings of the word "jurisdiction" can be supported, the distinction does not avail the learned advocate because the words used in Section 37(b) are not merely "where the Court of first instance has ceased to have jurisdiction" in which case some countenance may be given to his argument but they are "Where the Court of first instance has ceased to have jurisdiction to execute it," that is, only when the first Court had, lost jurisdiction to execute the decree that the second Court will take the place of the Court which passed the decree by reason of the section. This is the particular point which was dealt with by the Full Bench and the Full Bench held that the first Court never lost its jurisdiction to execute the decree. Apart from the binding nature of the decision of the Full Bench, we entirely agree with the actual decision in that case, namely, that the first Court which passed the mortgage decree never lost its jurisdiction to execute the decree by reason of the later notification by which the mortgaged properties are taken off from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relates to the powers of the second Court. It is this point that arises now directly for decision but it did not arise for decision before the Full Bench and will be dealt with lower down. All that I now wish to say is that the decision in Subbiah Naicker v. Ramanathan Chettiaf1 is completely overruled by the Full Bench so far as the powers of the first Court are concerned. But apart from this observation, the decision in Sivaskanda Raju v. Raja of Jeypore (1927) I.L.R. 50 M. 882 : 52 M.L.J. 605 is not only opposed to the Full Bench decision itself but to a long series of rulings relating to the powers of a Court which fossed a mortgage decree to execute its own decree. Ever since the Code of Civil Procedure of 1859 was passed, it was held that the first Court which passed a mortgage decree can execute its own decree whatever changes in jurisdiction may happen after the passing of the decree. It is enough simply to mention a list of decisions which have so held. Masteyk v. Steel and Co. Kartick Nalh Pandey v. Tilukdhari Lall (1888) I.L.R. 15 C. 667 Gopi Mohan Roy v. Doybaki N'undun Sen (1891) I.L.R. 19 C. 13. Tincouri Deoya v. Shib Chandra Pal Chozvdhury,s Latahman Pundeh v. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the utmost weight possible to the observations in the Full Bench decision even though they do not touch the actual decision in the caseI make this observation apart from the great respect I always had for the three learned: Judges who were sitting in the Full Bench. But 'giving every consideration to this aspect, myself and Devadoss, J., felt bound to differ from the opinion as to the power of the second Court with reference to Section 150 of the Code of Civil Procedure. I still adhere to that opinion. But in doing so I «do not wish to repeat the arguments I already mentioned in the former judgment but to supplement them by other arguments'for most of which I am indebted to the observations of my Lord, the Chief Justice, in the course of the argument. But before I do so I think it necessary first to set forth the notification changing the jurisdiction of the Courts. The notification runs as follows: His Excellency the Governor in Council having sanctioned in G.O. No. 1056, Home (Judicial), dated the 10th May, 1919, the establishment of two Additional District Munsifs' Courts for the Madura District, the High Court hereby directs under Sections 5 and 11 of the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l this has nothing to do with the past. The notification does not in terms transfer any business pending or closed from one Court to a new CourtMyself and Devadoss, J., have already pointed out some practical disadvantages apart from the inappropriateness of construing a notification which makes no reference to transfer as effecting a transfer of1 business. It is unnecessary to repeat these disadvantages in this judgment. But as I have already said I will mention some more for which I am indebted to my Lord, the Chief Justice. Let us suppose that some suits or applications relating to one property were pending in one Court. A notification is then issued taking away the properties from the jurisdiction of that Court and it comes to the knowledge of the presiding officer of that Court. Can it be said that ipso facto without anything further, without an order of the District Court or the High Court under Section 24, Civil Procedure Code, transferring certain work from that Court to the new Court all the business is transferred? When we put this question to the learned advocate he said that it must be regarded as so transferred. The next question that arose on this answer was whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st business. It seems to me that: unless the language of the notification is'plain, directions as to future regarding pending business cannot be implied. In my opinion unless the notifications of these cases are different in language and purport to transfer business specifically «or by general description, such a construction of the notification as was adopted in the decision in Subbiah Navcher v. Ramanaihan Chettiar (1914) I.L.R. 37 M. 462 : 26 M.L.J. 189 which was reiterated by Sadasiva Aiyar, J., in Venkntachallam vSithayamma17 and followed by other learned Judges in Ranganatha Rao v. Hanumantha Raols and Gwmszvami Naicke v. Mahomntadlw Roiwther is not permissjble. In Venkatackallawi v. Sithayaanma (1916)31MLJ22 Sadasiva Aiyar, J.; went a step further and said that the transfer of business referred to in Section 150 can be only by a notification effecting change of jurisdiction and not transfer of business by specific orders. In this extreme view he was not supported by the later decisions which hold that Section 150 applies to both kinds of transfer. But whatever that may be, in my opinion we cannot interpret a notification effecting change of jurisdiction for the fut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 150 have less weight than it would have been otherwise. Here I may now point out that the view of myself and Devadoss, j., construing the notification as merely changing the jurisdiction is in accord with the opinion of the Calcutta High Court in Munshi Md. Kazemal v. Mutisjii Jafiamuddin Ahmed,20 with the reasoning of which I entirely agree if I may say so with respect This is also the view taken by Cur-genven, J., in Rainamaihan Chetty v. Alagappa Chetiy. (1929) I.L.R. S3 M. 378 at 380 : 59 M.L.J. 102. I may here add one word with reference to the opposite construction of Section 150 which some time prevailed in this Court. Assuming that on account of the change of territorial jurisdiction the: second Court is the more convenient Court for execution, all that the decreet-holder has to do is to apply to the first Court for transmission of the decree under Section 39 of the Code. Such an application may entail a delay of a few days if the Courts are situated in different places, but in a case like the one, before us in which the Courts are in the same building the delay cannot e\»en amount to a day. Under such circumstances what is tHe need for enacting another secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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