Decided on September 18,1944

Ramaswami Chettiar And Anr. Respondents


- (1.) THE appellant obtained a decree on 18th March 1930, for a sum of Rs, 821. On 17th April 1941, the debtor obtained a stay Under Section 20 of Madras Act 4 of 1938, and in subsequent proceedings Under Section 19 of that Act, the decree was scaled down to an amount of Rs. 307. On 16th March 1942, i.e., two days before the expiry of the twelve years period fixed in Section 48, Civil P.C., the appellant applied to the decree Court, that is to say, the Court of the Subordinate Judge of Kumbakonam, for the transfer of the decree to the Court of the District Munsif of Mayavaram for execution. This application was eventually ordered on 20th March 1942, i.e., after the twelve years period had expired. Meanwhile, however, the appellant, in anticipation of this transfer order, .had filed the present execution petition in the Court of the District Munsif of Mayavaram on 18th March 1942. The papers were actually received at Mayavaram on 28th March and the petition was dismissed as being barred Under Section 48, Civil P.C. The correctness of this order is now under consideration.
(2.) THE appellant has raised a number of contentions. Firstly, he contends that the execution petition filed at Mayavaram on 18th March 1942, must be treated as having been presented on that date even though the decree had not yet been transferred to Mayavaram for execution, so that it cannot be said to be a fresh application presented after the expiration of twelve years from the date of the decree. The argument is that the section does not say "validly presented" or "presented to the proper Court." It seems to me that some such qualification must be implicit in the language and that it is impossible to contend that the presentation in a Court which has no jurisdiction is presentation at all. It is unthinkable that the decree -holder should be able to keep his decree alive by presentation of an execution petition in any Court regardless of its jurisdiction to execute the decree. I must hold that the mere handing in of this execution petition to a Court which had no jurisdiction to receive it, was not a presentation and that the presentation of the petition cannot be deemed to have taken place before the date when the executing Court had jurisdiction to receive it.
(3.) THAT the date of the order of transfer is the date with effect from which the transferee Court has jurisdiction has been held in Ademma v. Venkatasubbayya, A.I.R. 1933 Mad. 627. It is suggested that the order of transfer must date back to the date of the application for transfer, so that the transferee Court would have jurisdiction even before the transfer was ordered. The contention is that it is a general rule of procedure that all judicial orders date back to the date of the initiation of proceedings. I am not aware of any such general rules No doubt there are many classes of proceedings in which the final order is deemed to take effect from the date of the initiation of the proceedings; but when we are dealing with a question of jurisdiction, it seems to me that jurisdiction cannot be in abeyance, as it would be if its eventual exercise was to depend retrospectively upon some future order. During the pendency of the transfer application, I consider that the only Court which had jurisdiction to execute the decree was the trial Court. Jurisdiction passed to the transferee Court by the order of transfer and there is no basis for holding that this order dates back to the date of the application. It is next argued that the amendment of the decree Under Section 19 of Madras Act, 4 of 1938 gives a fresh starting point not merely under Article 182, Limitation Act, but also for the purpose of Section 48, Civil P.C. This argument is reinforced by two rather conflicting lines of judicial reasoning. There is the decision of Horwill J. in Jagannadham v. Venkatapanna, A.I.R. 1943 Mad. 765 where it was held that for the purpose of continuing a pending execution petition, the decree amended Under Section 19 is the same decree and not a different decree; whereas in Vikkara Veilodi v. Avarankutti, A.I.R. 1943 Mad. the Bench dealing with the question of the appealability of a decree amended under Sections 15 and 19, Madras Act, 4 of 1938, emphasized the difference in the mode of calculation of the amount payable under the decree and held that for purposes of appeal, the amended decree must be regarded as a fresh decree. It seems to me apparent that the decree as amended Under Section19, Madras Act, 4 of 1938, may be regarded in one sense as the same decree and in another sense as a fresh decree. But the question of the application of Section 48 to an amended decree is covered by the decision of the Full Bench in Ramachandra Rao v. Parasuramayya, A.I.R. 1940 Mad. 127 where it is pointed out that inasmuch as Article 182, Limitation Act, providing a fresh starting point of limitation from the date of the amendment of the decree is subject to the provisions of Section 48, Civil P.C., there can be no execution of a decree governed by Section 48 when 12 years have passed from the date of the decree, whether amended or not. It is true that the Full Bench was concerned with an amendment made Under Section 152, Civil P.C., but I can see no reason for applying a different rule to the case of an amendment made Under Section 19, Madras Act, 4 of 1938. The decisions of this Court regarding the right of appeal against a decree as amended under the Civil Procedure Code have been relied on for the view that a decree as amended Under Section 19, Madras Act, 4 of 1938, is separately appealable. Though, no doubt, the amendment Under Section 19 is frequently much more drastic than an amendment Under Section 152, Civil P.C., it is for purposes of execution still the same decree as is shown by the provisions of Section 19 itself, where -under if the scaling down process wipes out the whole of the debt, the Court has to record satisfaction of the original decree and undoubtedly all payments made to the original decree are taken into consideration in the process of amendment. I am therefore of opinion that the decision in Ramachandra Rao v. Parasuramayya, A.I.R. 1940 Mad. 127 governs the present case and that the amendment of the decree does not give a fresh starting point for the purpose of the 12 years rule Under Section 48, Civil P.C.;

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