MULA SURYANARAYANA Vs. MARUVADA BHAVANISANKARAM
LAWS(APH)-1950-10-1
HIGH COURT OF ANDHRA PRADESH
Decided on October 27,1950

MULA SURYANARAYANA Appellant
VERSUS
MARUVADA BHAVANISANKARAM Respondents

JUDGEMENT

Srinivasachari, J. - (1.) This is a Letters Patent Appeal against the judgment of Viswanatha Sastri, J., in A.A.A.O. No. 212 of 1951. The facts, briefly, are that a decree for the payment of money with a charge on certain immoveable property was passed by the Court of the District Munsif, Rajahmundry. This decree was passed on 20th April, 1937. The decree stipulated that the decretal amount should be paid, on or before 27th October, 1937. The decree-holder filed E.A. No. 652 of 1940 on 27th April, 1940, in the Court which passed the decree praying for transmission of the decree to the Court of the District Munsif, Amalapuram, for execution against the charged property. Thereafter the decree-holder filed E.P. No. 226 of 1943 in the transferee Court on 19th July, 1943. The judgment-debtor filed a petition under section 20 of Act IV of 1938 for the scaling down of the decretal debt and it was scaled down on 15th June, 1945. After this, an execution petition was filed being E.P. No. 247 of 1947 on 12th September, 1947, for execution of the decree and thereafter E.P.No. 136 of 1949 was filed on 15th April, 1949, for execution of the decree by sale of the hypotheca. The Court fixed the date for the sale of the property as 12th December, 1949. Meanwhile, the original decree-holder assigned his decree in favour of one Maruvada Bhavanisankaram by a registered assignment deed. After this assignment, an application was filed being E.A. No. 808 of 1949 on 19th October, 1949, by the transferee-decree-holder for recognition of his transfer. This application was filed in the transferor Court, namely, the District Munsif, Rajahmundry. The records would show that the District Munsif, Rajahmundry, addressed the District Munsif, Amalapuram where execution proceedings were pending, requesting the latter Court to send back the decree copy in O.S. No. 176 of 1936 saying that it was required for reference in E.A. No. 808 of 1949 in the proceedings relating to the transfer of the decree by the original decree-holder. Subsequent to this on 7th December, 1949, another letter was addressed by the District Munsif, Rajahmundry to the District Munsif, Amalapuram, requesting that the decree copy in O.S. No. 176 of 1936 be transmitted to the Court with '' necessary certificate of execution " before 10th December, 1949, stating that the recognition of transfer could not be proceeded with unless the decree and the other documents were sent to the Court. On receipt of the letter from the Court of the District Munsif, Rajahmundry, the District Munsif, Amalapuram, passed an order on 9th December, 1949, to the following effect : "The hearing was advanced from 12th December, 1949 to 9th December, 1949. The decree copy is recalled by the original Court on the petition of the decree-holder and hence terminated."
(2.) It is this order of the District Munsif, Amalapuram, which has to be interpreted in this appeal in order to consider as to whether it amounted to closing of the execution proceeding. On 6th January, 1950, the "District Munsif, Rajahmundry, passed an order recognising the transfer of the decree in favour of Maruvada Bhavanisankaram and ordering transmission to the District Munsif, Amalapuram, for further steps. The assignee decree-holder filed E.A. No. 68 and E.A. No. 69 of 1950, the first E.A. for permission to continue the proceeding in E.P. No. 136 of 1949 and the second E.A. praying that the proceedings in E.P. No. 136 of 1949 which were terminated on 9th December, 1949, be reopened. These two petitions were dismissed by the District Munsif, Amalapuram, against which C.M.A. No. 8 of 1950 was filed before the Sub-Judge, Amalapuram, and the Sub-Judge confirmed the order of the District Munsif. Two appeals, A.A.A.O. Nos. 211 and 212 of 1951 were filed before this Court which were disposed of by a common judgment on 21st September, 1956. The learned Judge allowed these appeals and set aside the order of the Subordinate Judge confirming the order of the Munsif. The learned Judge came to the conclusion that E.A. Nos. 68 and 69 of 1950 should be allowed and E.P. No. 136 of 1949 should be proceeded with by the transferee Court, namely, the District Munsif, Amalapuram. It is this order which is challenged in this appeal.
(3.) The whole argument in this appeal centered round the question as to the effect of the order of the District Munsif of Amalapuram passed on 9th December, 1949. The question to be decided is as to whether the proceedings could be deemed to be pending in the Court of the District Munsif, Amalapuram, or whether they were closed and the Court of the District Munsif ceased to have any jurisdiction to execute the decree. The relevant section of the Civil Procedure Code relating to the transmission of decrees for execution to another Court is section 39 which empowers the Court which passed the decree to send it for execution to another Court on an application made in that behalf and the Court on receiving the decree shall execute the decree as it would just in the same manner as the Court which passed the decree. Section 41, Civil Procedure Code, says that the Court to which a decree is sent for execution, on the determination of the proceedings in that Court, shall certify to the Court which passed the decree the result of those proceedings. It is this certification which has the effect of determining the jurisdiction of the transferee Court. This section makes it obligatory on the executing Court to certify to the transferor Court the result of the proceedings before it. The words of the section are clear to indicate what the executing Court has to do. The words are " the Court to which the decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same, the circumstances attending such failure.";


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