Report No. 27
1. Section 37(b) provides that the expression "Court which, passed a decree" shall be deemed to include, 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, etc., would have jurisdiction to try such suit. This section has caused a certain amount of controversy in cases where court A passes a decree, and a part of the area within the jurisdiction of the court A is later transferred to court B. The questions which have arisen are--
(i) whether court A continues to have jurisdiction to entertain an application for execution of the decree, and
(ii) whether the court to which the area is transferred, (court B) can entertain an application for execution without a formal transmission of the decree from Court A to Court B.
2. So far as the first question is concerned, an affirmative answer can now be given in view of the position of the case law. But a controversy still remains on the second question, and, as would be evident from a recent decision1, the controversy still survive, because in that case the court had to dissent from a Punjab case1.
The following extract from a Supreme Court decision3 discusses the position on the first question.
"And it is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another court."4.
But the court refrained from pronouncing on the second question, namely, whether the court to which the subject-matter of the decree has been transferred can, on its own authority, execute the decree.
The court observed:-
"There is a long course of decisions in the High Court of Calcutta that when jurisdiction over the subject-matter of a decree is transferred to another Court that Court is also competent to entertain an application for execution of the decree5. But the Full Bench of the Madras High Court6 has taken a different view, and held that in the absence of an order of transfer by the court which passed the decree, that court alone can entertain an application for execution and not the court to whose jurisdiction the subject matter has been transferred.
"This view is supported by the decision in a Calcutta case7. It is not necessary in this case to decide which of these two views is correct, because even assuming that the opinion expressed in the Madras case8 is correct, the present case is governed by the principle laid down in the Madras case9.
It was held therein that the court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution application with reference thereto, it would at 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".
4. The whole controversy is based on the meaning of section 37, and particularly the word "include" in that section. B.K. Mukherjea J. (as he then was) had in the Calcutta case10 to dissent from the earlier view taken in ILR 6 Cal. 513, and to point out that even after transfer of the area the court which passed the decree remained the competent court for purposes of execution, even though the decree-holder might have to apply for transmission of the decree to another court for obtaining the desired relief.
The word "include" in section 37, though in a way extending the meaning of the expression "Court which passed the decree", was regarded in another sense as restricting it and as excluding to original court and substituting for it another court in the circumstances which came under clauses (a) and (b). The Madras Special Bench decision11 expressly decides that the new court to which the area is transferred could not entertain an application to execute the decree without transmission by the original court.
5. As against this, the Punjab case12 holds that jurisdiction to execute cannot be confined to entertaining the application, and points out, that if transfer of areas is taken out of section 37 (b), hardly any case is left in which the court of first instance continues to exist and yet ceases to have jurisdiction within the meaning of section 37 (b). According to this interpretation, section 37 enlarges the scope of the expression "Court which passed the decree" with the object of giving greater facilities to a decree-holder to realise his decree. Since execution involves delivery of possession or other action, it cannot be done unless the property is within the territorial jurisdiction of the court.
According to the reasoning of the Punjab High Court, the decree will ultimately have to be executed by the second court, and it is a question of pure formality that the application should in the first instance be filed in the first court. A too narrow interpretation of section 37 (b) was, it was pointed out, likely to defeat the object of the law rather than further the ends of justice
6. In this position of the case law, a clarification on the subject is called for. Necessary change is proposed.
1. Gopalakrishna v. Laxman, AIR 1964 Mys 34 (Hegde and T.K. Tukol JJ.) (March, 1964 issue).
2. Kasturi Rao v. Mehar Singh, AIR 1959 Punj 350 (C.D. Khosia J.)
3. Merla Ramama v. Nallaparaju, (1955) 2 SCR 938: AIR 1956 SC 87, para. 12 (Venkatarama Ayyar J.).
4. Seeni Nadan v. Muthuswamy Pillai, ILR 42 Mad 821: AIR 1920 Mad 427; Masrab Khan v. Debnath Mali, ILR (1942) 1 Cal 289: AIR 1942 Cal 321 and Jagannath v. Ichharam, AIR 1925 Born 414.
5. Lutchman v. Maddan Mohun, ILR 6 Cal 513, Jahar v. Kamini Devi, ILR 28 Cal 238 and Udit Narain v. Mathura Prasad, ILR 35 Cal 974.
6. Ramier v. Mathukrishna Ayyar, ILR 55 Mad 801: AIR 1932 Mad 418 (SB).
7. ILR (1942) 1 Cal 289: AIR Cal 321.
8. ILR 55 Mad 801: AIR 1932 Mad 418 (SB).
9. Balkrishnayya v. Linga Rao, ILR 1943 Mad 804: AIR 1943 Mad 449.
10. Masrab Khan v. Debnath Mali, ILR (1942) 1 Cal 289: AIR 1942 Cal 321.
11. Ramier v. Muthukrishna Ayyar, ILR 55 Mad 801: AIR 1932 Mad 418 (SB).
12. Kasturi Rao v. Mehar Singh, AIR 1959 Punj 350 (G.D. Khosla J.).