KONTHAN KESAVAN Vs. VARKEY THOMMAN
LAWS(KER)-1963-2-23
HIGH COURT OF KERALA
Decided on February 19,1963

KONTHAN KESAVAN Appellant
VERSUS
VARKEY THOMMAN Respondents


Referred Judgements :-

BRITISH SOUTH AFRICA CO. V. COMPANHIA DE MOCAMBIQUE [REFERRED TO]
SEENI NADAN V. MUTHUSWAMY [REFERRED TO]
KUNJA MOHAN V. MONINDRA CHANDRA [REFERRED TO]
SATRUCHERLA SIVAKANDA RAJU V. RAJA OF JEYPORE [REFERRED TO]
GOPAL V. SHAMRAO [REFERRED TO]
MERLA RAMANNA VS. NALLAPARAJU [REFERRED TO]
HIRA LALPATNI VS. KALI NATH [REFERRED TO]
JUGAL CHARAN MONDAL JUDGMENT DEBTOR VS. PANKAJINI DASI DECREE HOLDER [REFERRED TO]
MADHAVAN NAIR VS. KALIAPPA NAIDU [REFERRED TO]
KHIROD CHANDRA GHOSH VS. PANCHU GOPAL SADHUKHAN [REFERRED TO]
MASRAB KHAN VS. DEBNATH MALI ALIAS ABHU MALI [REFERRED TO]
VASIREDDI SRIMANTHU AND TWO ORS. VS. DEVABHAKTUNI VENKATAPPAYYA AND ANR. [REFERRED TO]


JUDGEMENT

- (1.)The Revision Petition has been referred to the Division Bench by a learned single Judge of this court as he found that there is conflict of rulings on the point which governs the decision of the CRP. The 2nd defendant is the revision petitioner. The decree holder had obtained a decree for redemption of a mortgage in the Vaikom Munsiff's Court. On 23-5-1959 he filed an application in that court for execution of the decree and on 5-6-1959 that court passed an order for delivery. In pursuance to that order the property was delivered to the decree holder on 6-6-1959.
(2.)The petitioner alleged that he came to know of the order for delivery only on 10-8-1959 and prayed to review that order, and for redelivery of the property. The main ground for review was that at the time when the order for delivery was passed by the court, the property which was the subject matter of the suit had already been transferred to the territorial jurisdiction of the Shertalai Munsiff's Court and therefore the order for delivery and the delivery itself were without jurisdiction and void. The other grounds alleged need not be referred to as they are not necessary for the decision of this petition.
(3.)Therefore the only point for decision in this Civil Revision Petition is whether the Munsiff's Court, Vaikom had ceased to have jurisdiction to pass the order for delivery and deliver the property, as the property had already been transferred to the territorial jurisdiction of the Shertalai Munsiff's Court, and whether the order for delivery and delivery itself were for that reason void and of no effect. The petitioner contended that under S.37 & 38 of the Civil Procedure Code, the only court which could order delivery of the property was the Shertalai Munsiff's Court as that was the court competent to execute the decree. S.37 of the Civil Procedure Code reads as follows:-
"37. Definition 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 execution of the decree, would have jurisdiction to try such suit."

S.38 is in the following terms:

38. Court by which decree may be executed: --

A decree may be executed either by the court which passed it or by the court to which it is sent for execution."

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