R.B.Mehrotra - (1.) BY means of the present writ petition under Article 226 of the Constitution of India, the petitioners have challenged the validity of the order, dated 14-12-1988 passed by the Munsif Haveli, Varanasi dismissing the petitioners objection that the court has no jurisdiction to execute the decree and the order of the VII Addl. District Judge, Varanasi, dated 2-5-1989 dismissing the petitioners revision filed against the order of the Munsif Haveli, Varanasi, dated 14-12-1988.
(2.) THE short controversy involved in the case is, that initially a suit was filed under section 229-B of the U. P. Zamindari Abolition and Land Reforms Act by Ram Deo and Munna for a declaration that they are co- tenure-holders of the land in dispute. THE suit was decreed and the said decree was maintained upto the Board of Revenue and the High Court also upheld the said decree, the writ petition filed by Buddhu in this Court was rejected. However, a special appeal against the judgment of the learned single judge of this court is still pending in this court. During the pendency of the aforesaid litigation the present respondents no. 3 to 8, who are the heirs of Ram Deo and Munna, filed a Civil Suit seeking a decree of joint possession and mesne profits against the petitioners, who are heirs of Buddhu. This suit was initially filed in the court of the Munsif Haveli, Varanasi but was transferred to the court of VIII Addl. Munsif, Varanasi, who decreed the suit. Appeal filed against the said decree was also dismissed by the District Judge, Varanasi. Against the aforesaid two judgments, a second appeal has been filed in this court which has been admitted being second appeal no. 2222 of 1988. This second appeal is pending consideration in this court. On the interim application moved by the petitioners in the aforesaid second appeal, this court refused to grant any interim order on the ground that since the decree is for the joint possession, no interim order is required. Respondents no. 3 to 8 applied for execution of the decree passed in Civil Suit No 35 of 1975. The execution was filed in the court of the Munsif Havali, Varanasi. The present petitioners objected in the execution proceedings on the ground that the Munsif Havali, Varanasi has no jurisdiction to execute the decree passed by the VIII Addl. Munsif, Varanasi. The Munsif Havali rejected the petitioners' objection, vide his order, dated 14-12-1988. Aggrieved by the said order the present petitioners filed a revision which has also been rejected by the VII Addl. District Judge, Varanasi, vide his order dated 2-5-1989. Both these orders are under challenge in the present writ petition.
(3.) I have heard learned counsel for the parties. The only submission made on behalf of the petitioners' counsel is that in view of the provisions of section 38 of the Code of Civil Procedure, only the court which has passed the decree has the jurisdiction to execute the decree or the decree can be executed by any other court if the court which passed the decree transfers the execution proceedings to such court. The submission of the counsel for the petitioners is that in the present case, decree was passed by the VIII Addl. Munsif, Varanasi, the VIII Addl. Munsif, Varanasi has not transferred the decree for execution to Munsif Havali, Varanasi, as such Munsif Havali has no jurisdiction to execute the decree passed by the VIII Addl. Munsif, Varanasi. The counsel for the petitioners has relied upon two decisions in support of the aforesaid submission :- Mirla Ramanna v. Nalappa Raji, AIR 1958 SC 87. Ramier v. Muthu Krishna Ayyar, AIR 1932 Mad. 418. (Special Bench). The submissions of the counsel is that the court of VIII Addl. Munsif, Varanasi is still in existence so only VIII Addl. Munsif. Varanasi had jurisdiction to execute the decree passed by the said court. No other court has jurisdiction unless VIII Addl. Munsif, Varanasi transfers the execution to such other court. In the impugned judgments, the Munsif Havali has taken a view that since the court of VIII Addl. Munsif, Varanasi is now conferred with exclusive jurisdiction of dealing criminal cases, the said court has ceased to have any jurisdiction to execute the decree and the court of the Munsif Havali, Varanasi is only seized with the jurisdiction dealing with the subject matter, as such the court of Munsif Havali has jurisdiction to execute the decree. The Munsif Havali in the impugned judgment has also held that since the decree-holder has got possession of the disputed land on 27-10-1988. it is not desirable to reject the execution application of the decree holder. The third reasoning given by the Munsif Havali is that since the interim application moved by the judgment-debtor in the second appeal has been rejected by the High Court, there is no justification for rejecting the execution application. The VII Addl. District Judge, Varanasi, while rejecting the petitioners' revision has held that since the original suit was filed in the court of the Munsif Havali, Varanasi, therefore, the Munsif Havali, Varanasi had jurisdiction to execute the decree in view of the provisions of section 37 (b) of the Code of Civil Procedure. Section 37 (b) of the Code of Civil Procedure reads as under:- "57. Definition of courts which passed a decree-The expression "Court which passed a decree" or words to that effect, shall in relation to the execution of the decrees, unless there is anything repugnant in the subject or context, be deemed to include.- ??? ? ??? ??? ?? ? ? ? (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 the execution of the decree, would have jurisdiction to try such suit".;