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TMI Blog1961 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... he consequence that these villages ceased to be within the territorial jurisdiction of Sangrur Courts and fell within the territorial jurisdiction of Sunam Courts. After these changes the decree-holder filed two separate applications for execution of these decrees in the Sunam Court. The judgment-debtors pleaded that the Sunam Court had no jurisdiction to execute these decrees and that the proper Court for the purpose was the Sangrur Court. This Plea prevailed in the Executing Court of Sunam and the decree-holder's appeals were dismissed by the District Judge. The learned Single Judge of this Court, however, accepted the decree-holder's second appeals and held that the Sunam Court had jurisdiction to execute these decrees. With his leave the judgment-debtors filed two Letters Patent appeals (Letters. Patent Appeals Nos. 14 and 17 of 1958) under. Clause 10 of the Letters Patent. When these Letters Patent appeals came up before the Division Bench of which I was a member we decided to refer the same to a larger Bench in view of conflicting decisions in the various High Courts. These appeals have now been placed before us for decision and it will be convenient to decide both of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. S. 38. A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. S. 39. (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court,-- (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or (d) if the Court which passed the decree considers for any other reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm the Court which passed the decree does not exclude the decreeing Court, but only empowers certain other Courts to execute them in certain specified circumstances. It is not necessary to discuss this matter at length as all the High Courts have consistently held that the decreeing Court does not lose jurisdiction to execute the decree because of the provisions in Section 37, Civil Procedure Code,--(vide Latchman Pundeh v. Maddan Mohun Shye and others I.L.R. 6 Cal. 513, Jahar v. Kamini Devi I.L.R. 38 Cal. 238, Masrab Khan v. Debnath Mali alias Abhu Mali and others A.I.R. 1942 Cal. 321, Seeni Nadan v. Muthusamy Pillai and nine others I.L.R. 42 Mad. 821, and Jagannath Nathu and others v. Ichharam Naroba Vani A.I.R. 1925 Bom. 414. This conclusion has now been approved by the Supreme Court in Merla Ramanna v. Nallaparaju and others A.I.R. 1957 S.C. 87. 7. We, therefore, start with the proposition that by virtue of section 38, Civil Procedure Code, the Court which originally passed the decree does not cease to be the decreeing Court even when the subject-matter of the decree has been subsequently transferred to the jurisdiction of another Court. Now the general principle of law is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect one and it has been described in many cases as cumbersome (Udit Narain Chaudhuri v. Mathura Prasad I.L.R. 35 Cal. 974, but undoubtedly it is effective to get the decree executed and satisfied. 9. The case of the decree-holder, however, is that although the remedies under sections 39 to 42 are available to him, but it is also open to him to get the relief required by him by taking advantage of section 37 (b) and according to him the cumbersome procedure of sections 39 to 42 can be effectively avoided by applying direct to the Court that alone can give the necessary relief. On the other hand the contention of the judgment-debtors is that this procedure is not open to him as proceedings under section 37 cannot be taken as long as the decree-holder can proceed under section 38 of the Code. It is on this point that there is considerable conflict in the judicial decisions. The Calcutta view is that it is open to the decree-holder to take proceedings either under section 38 or under section 37, Civil Procedure Code, although the decisions of that Court are not unanimous and opposite view has been taken in Masrab Khan v. Debnath Mali alias Abhu Mali and others A.I.R. 1942 Cal. 321 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of a decree-holder. Therefore, in such cases it is open to the decree-holder to avail of either of the two remedies. As a matter of practice these applications are filed in the trial Court. 11. The first portion of section 37(b) deals with a case where the decreeing Court has been abolished since after the decree. In such a case as observed in Masrab Khan v. Dabnath Mali alias Abhu Mali and others A.I.R. 1942 Cal. 321, there can be no application under section 38, Civil Procedure Code and the decree-holder has no course open to him, but to apply to a Court indicated under section 37(b). The second part of section 37(b) empowers the decree-holder to file an execution application to a Court where a suit for the same relief could have been filed. This is an additional right and it has been given with a view to avoid cumbersome procedure of approaching the decreeing Court under section 38 of the Code and then asking it to transfer the decree under section 39 of the Code. It is this last category on which the judicial unanimity is lacking. 12. A question has been raised in many cases as to what is the meaning of the expression ceased to have jurisdiction to execute it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution application either to the Court that actually passed the decree or to the Court that can effectively execute it and in the latter case it is not necessary to comply with the provisions of section 39 of the Code. I am expressing this opinion with due respect to the learned Judges, who have taken an opposite view. 14. In the course of arguments it was suggested that this view will result in confusion in the decreeing Court and will put the judgment-debtor to undue hardship. I see no such consequence. When an application is made to a Court in accordance with the provisions of section 37 then it will no doubt summon the decree and, if necessary, the entire record from the Court that actually passed the decree. That record is of no use to the decreeing Court and in any case this administrative problem cannot be allowed to deprive a decree-holder of a right which has been given to him under section 37 of the Code. Another harassment to the judgment-debtor was suggested on the ground that the decree-holder will then be able to move both the Courts simultaneously. That it may be so, but separate applications in both Courts in a case of present nature can have only one consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other A.I.R. 1928 Mad. 746, Ramier v. Mathu Krishna Ayyar and others A.I.R. 1932 Mad, 418 (F.B.), Packianathan Nadar Maryarul Nadar v. Mathevan Pillai Nanu Pillai A.I.R. 1957 Trav. Co. 69, and Masrab Khan v. Debnath Mali alias Abhu Mali and others A.I.R. 1942 Cal, 321, I do not consider it necessary to burden this judgment by discussing the facts of these cases and then repeat my reasons for my views. 16. I, therefore, hold that it was open to the decree-holder in the present case to apply for execution of the decrees obtained by him from the Sangrur Court in the Sunam Courts. 17. Before concluding this judgment I may discuss section 150, Civil Procedure Code, on which the decree-holder has relied in support of his contention that the decree-holder could make application direct to the Sunam Court for execution of the decrees obtained by him. Section 150 has already been reproduced in the beginning of this judgment. The Government notification under which boundaries have been altered is not before us. It was urged on behalf of the decree-holder that where territories are altered as in the present case it must be assumed that the business of that Court is also transferred to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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