Decided on July 30,1953



- (1.) RATHER an intriguing question has arisen here by reason of the method adopted by the parties. There was an execution application registered as E. A. No. 1544 of 1944 on the file of the District Munsif of Masulipatam. The learned District Munsif converted it into a suit by an order dated 15-11-1947 and numbered it as O. S. No. 13 of 1948. When that suit came up for hearing, it was found that the subject- matter of the suit exceeded the pecumary jurisdiction of the Muusif's Court and therefore he directed the return of the plaint to be presented to the proper Court. It was thereafter presented to the Sub-Court of Masulipatam; but the Subordinate Judge held that since it was a matter relating to execution, even though it was converted into a suit it was only the Court which has jurisdiction to execute the decree that can try this suit. On this finding following -- 'Ramanuja Naicker v. Soliappa Naicker', AIR 1931 Mad 270 (A) the learned Subordinate Judge directed the return of the plaint and there were certain minor defects also to be rectified. The plaintiff again represented the same plaint to the same Court and on a second occasion a successor of the learned Subordinate Judge held that the Subordinate Judge's Court had no jurisdiction, agreeing with the view taken by his predecessor, on the ground that it is the executing Court alone that can go into this matter, whether it is in the nature of a suit or as a proceeding. The learned Subordinate Judge has again directed the return of the plaint. This appeal is against that order.
(2.) WE are of opinion that the lower Court is right in returning the plaint, because the matter originally arose out of execution proceedings and those proceedings were converted into a suit. WE are also told now that, pursuant to the order of the learned Subordinate Judge now appealed against, the plaint has been represented to the District Munsif's Court of Masulipatam and is pending there. In our opinion the original order, converting the execution petition into a suit, of the District Munsif is opposed to law, because under S 47(2), Civil P. C. an executing Court can convert a proceeding only subject to limitation, and jurisdiction. That is, an executing Court can convert an execution petition only if, converted as a suit, it has jurisdiction to try it, but not otherwise. It is well known that there is no pecuniary limit so far as executions are concerned. The Subordinate Judge is wrong in thinking that if the execution petition is converted into a suit, the value of which is above Rs. 5000 then the District Munsif can try that suit. That is opposed to the plain meaning of the section. A District Munsif may execute a decree transferred to him passed by a District Judge or Subordinate Judge, where the subject-matter is much more than Rs. 3,000. But he cannot entertain a suit, the pecuniary jurisdiction of which is above Rs. 3000. There fore what is contemplated under Section 47, Sub-clause (2) is that, if an execution petition is within the pecuniary jurisdiction of the Court to which it is filed, then only it can convert it into a suit, but not otherwise. He cannot by converting an execution petition of the value of more than Rs. 3000 create a new suit and have it returned for presentation to a Court of higher jurisdiction. In this view, now that the plaint has been again re-presented before the District Munsif, he should reconvert that into an execution petition and dispose of it according to law. With these observations the civil miscellaneous appeal is dismissed with costs.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.