BHARGAVA, J. - (1.) THESE two appeals between the same parties raise a common question of law and are, therefore, being dealt with together.
(2.) THE decree-holder appellants instituted a suit in the court of the Sub-Judge, Ajmer for possession of immovable property valued at Rs; 6000/-and for mesne profits amounting to Rs. 770/-on 5th February, 1945. THE defendants objected that the suit was under valued and the value of the disputed property was near about Rs. 15000/ -. THE learned Sub Judge by his order dated 10th July, 1945 held that the valuation of the suit property excluding the amount of mesne profits was Rs. 8500/ -. A revision application was taken to the court of the Judicial Commissioner, Ajmer Merwara who by his order dated 29th August, 1945 directed the Nazir of the District Court to enquire into the valuation of the house and the land on which it stood and certify the result to that court. THE District Nazir's report was received by that court and objections were filed against it. THE learned Judicial Commissioner by his order dated 24th October, 1945 remitted the case to the trial court with a direction to fix the valuation of the site and the buildings in the light of the remarks made in the earlier judgment i. e. , 29th August, 1945 and after examination and cross-examination of the district Nazir, However, before the correct value of the suit property was determined by the sub Judge the case was transferred by the District Judge to the court of Sub Judge, First Class, Ajmer whose jurisdiction extended upto Rs. 50,000/ -. In view of the jurisdiction of the Sub-Judge First Class extending upto Rs. 50,000/-the objection regarding jurisdiction and the valuation of the property was not pressed by the defendants and thus the case came to be tried in that court without correct valuation of the property having been determined. Eventually after trial the suit was dismissed on 17-12-1953. This decree was however, reversed by the High Court on 19-4-1960 and the suit was decreed. Govind Narain Mathur vs. Smt. Mohinidevi (1-a ). THE decree holders on 5-4-1953 filed an application for execution in the court of the Senior Civil Judge, Ajmer and also got it transferred with a certificate to the court of the District Judge, Jaipur where an execution application was presented for realisation of mesne profits. Thus the execution application for recovery of possession remained on the record of the Senior Civil Judge, Ajmer while the decree for recovery of mesne profits was transferred to the court of the District Judge, Jaipur who further transferred it to the court of the Senior Civil Judge, No. 1 Jaipur City. Before both these courts the judgment debtors raised an objection that the Senior Civil Judge, Ajmer had neither the jurisdiction to entertain the execution application nor to transfer it for execution to the court of the District Judge, Jaipur City. It was contended that the court of the Senior Civil Judge, Ajmer was neither the court which passed the decree nor the court to which it was sent for execution. According to the judgment debtors, Senior Civil Judge's court was also not the court of first instance competent to execute the decree passed by the High Court in its appellate jurisdiction. It was also contended that after the abolition of the court of Sub Judge First Class Ajmer, a new court after the integration of Ajmer state into Rajasthan, of Civil Judge was established and it was the latter court which alone was competent to execute the decree as at the time of the application for execution of the decree it had jurisdiction to try the suit. This objection prevailed in the court of the Senior Civil Judge, Ajmer who in his order dated 8th March, 1965 opined that Civil Judge's court was the proper court to execute the decree, but simultaneously on the same date he made a request to the District Judge Ajmer to transfer the execution file to the Civil Judge's Court and accordingly the District Judge, Ajmer transferred the execution case to the court of Civil Judge Ajmer. The judgment debtors again pressed their objection before the Civil Judge that the order of transfer of the execution case was not valid as in the eye of law no case was pending in the court of Senior Civil Judge, The learned Civil Judge accepted the judgment debtors' objection and dismissed the execution application by this order dated 7-5-1966. The decree holder's first appeal before the District Judge, Ajmer also failed and hence Civil Execution second Appeal No. 43 of l967 has been filed in this court. The execution application presented in the court of Senior Civil Judge, Jaipur for recovery of mesne profits was also dismissed on the ground that the Senior Civil Judge, Ajmer had no jurisdiction to transfer the decree and against that order Civil First Appeal No. 26 of 1965 had been filed by the decree holders. In order to appreciate the contentions raised in this Court it is necessary to narrate briefly how the courts of Senior Civil Judge and Civil Judge, Ajmer came to be established. Before the Constitution of India came into force the area was known as Chief Commissioner's Province of Ajmer-Merwara and for the administration of civil Justice Ajmer was a single District and had the following Civil courts of five grades: (a) The Courts of the Judicial Commissioner; (b) the Courts of the District Judge and the Additional District Judge; (c) the Courts of Subordinate Judges of the first class; (d) the Courts of Subordinate Judges of the second class; and (e) the Courts of Munsifs. (vide sec. 2 of Regulation IX of 192 6 ) sec. 9 (1) of the Regulation gives the extent of jurisdiction of the court of subordinate Judge First Class to all original suits in which the amount or value of the subject matter does not exceed ten thousand rupees. However under the proviso to the above the State Government could by order in writing extend the jurisdiction of any Subordinate Judge to all such suits without limit of amount or value. It was in the exercise of the above power that by Notifications dated 14-2-59 and 4-11-50 Sub-Judge First Class, Ajmer jurisdiction was extended to suits upto the amount or value of Rs, 50,000/ -. Under the Constitution Ajmer Merwara become the Part 'c State which merged in the new State of Rajasthan which was formed as result of the 1ist of November, 1956. By the Rajasthan Civil Courts Laws (Extension) Act, 1956 (Act. No. 2 of 1957) Rajasthan Civil Courts Ordinance, 1950 (Rajasthan Ordinance No. VII of 1950) and the Rajasthan Small Cause Courts Ordinance, 1950 (Rajasthan Ordinance No. VIII of 1950) as in force in the pre-organization State of Rajasthan was extended to Ajmer area also and sec. 5 of this Act repealed all laws corresponding to the Rajasthan Ordinances in force in Ajmer area immediately before the appointed day i. e. , the first day of December, 1956. The second proviso to that section, is as under - " (a) all courts constituted, appointments and orders made and jurisdiction and powers conferred under any law so repealed shall be deemed to have respectively been constituted, made conferred under such relevant Rajasthan Ordinance, and (b) any person holding office as a subordinate judge immediately before the appointed day, shall on and from that day, be deemed to have been designated as a civil Judge, notwithstanding the fact that in official records his designation may not have been so altered. The effect of Act. No. 2 of 1967 thus was that the subordinate Judge working in Ajmer area was deemed to have been redesignated as a Civil Judge from 1st December, 1966 although in official records his designation may not have been so mentioned. Then by Notification No. 4217/f. 1 (99) LJ/b/57- (l) dated October 12, 1957, published in the Rajasthan Rajpatra dated November 7, 1957 Part IV (c) at page 617, the Government of Rajasthan in exercise of the powers conferred by sub-sec. (1) of sec. 7, and sub-sec. (1) of sec. 12 and sec. 19 of the Rajasthan Civil Ordinance 1950 (No. VII of 1950) established an additional court of Civil Judge to be designated as court of Senior Civil Judge, Ajmer District with head quarters at Ajmer with effect from 15th October, 1957. The said court was to have territorial jurisdiction over Ajmer District excluding Kishan garh Sub-Division; and its pecuniary jurisdiction was to extend to all suits and original proceedings without restriction as regards value. Then by Notification No. F. 1 (57) LJ/b/56 dated December 30, 1957, published in the Rajasthan Rajpatra dated December 30, 1957, Part IV (c) at page 120 (ch), the State Government in exercise of the powers conferred by sub-sec. (1) of sec. 7 and sub-sec. (1) of sec. 12 of the Rajasthan Civil Courts Ordinance, 1960 (No. 7 of 1950) and sec. 5 of the Rajasthan Small Cause Courts Ordinance, 1950 (No. 8 of 1950), with effect from 1st January, 1958, abolished all the courts of Subordinate Judges in the Ajmer area and in lieu thereof established the following permanent civil courts; 1. Civil Judge, Ajmer. Upto Rs. 10,000 Ajmer Sub-Division 2. Judge, Small Cause Court, Ajmer and Additional Civil Judge Upto Rs. 500 as Judge, Small Cause Court and upto Rs. 10,000 as Additional Civil Judge. Ajmer Sub-Division including Nasirabad Cantonment. Thus when the decree holders presented the execution application the following civil courts were functioning at Ajmer. 1. District & Sessions Judge. 2. Senior Civil Judge with unlimited pecuniary jurisdiction. 3. Civil Judge, Ajmer. 4. Judge Small Cause Court, and 5. Additional Civil Judge, Ajmer besides the court of Munsifs. At this stage I may mention the statutory provisions of the Code which are relevant for the purposes of these appeals. Sec. 38 of the Code says a decree may be executed either by the court which passed it, or by the Court to which it is sent for execution. Sec. 37 defines the expression' Court which passed a decree', and says that it shall 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 the execution of the decree, would have jurisdiction to try such suit. "
(3.) IN the present case the decree to be executed was passed by the High Court in exercise of appellate jurisdiction and, therefore, according to cl. (a) of S. 37 of the Code, the court competent to execute the decree was the court of first instance, which was the court of Sub Judge First Class, Ajmer. Before the District Judge, Ajmer, in first appeal against the judgment of the Civil Judge, Ajmer, it seems to have been admitted by the judgment debtors that the court of Sub. Judge First Class had ceased to exist and, therefore, clause (b) of sec. 37 of the Code was applicable and that being as it was urged before that court that the valuation of suit being Rs. 8500/- it was the Civil Judge, Ajmer who had jurisdiction to try such suits on the date the application for execution was made. But in this Court the contention of Mr. Agrawal learned counsel for the judgment debtors is that the court of the Sub Judge First Class did not cease to exist and the case is governed by clause (a) of sec. 37. Mr. Agrawal contends that by mere change of designation or reduction of its pecuniary limits, a court does not cease to exist for the purposes of sec. 37. It is pointed out that if by some administrative order, pecuniary limits of the jurisdiction of a Sub Judge First Glass Ajmer was reduced to Rs. 10,000/- only or by Act No. 2 of 1957, his designation was changed to that of Civil Judge and even subsequently, when that court was abolished by Notification dated December 30, 1957 and re established as court of Civil Judge, Ajmer, the court did not cease to exist for the purposes of sec. 37. Reliance is placed on Lyallpur Bank Ltd vs. Jai Gopal (1) Raza Hussain vs. Gaya Prasad, (2) Abdus Sattar vs. Mohini Mohandas (3) and Suryan-arayan Agrawalla vs. Maheswar Keot (4 ). In the first case a decree was passed by the court of the District Judge, Dera Ismil Khan on the basis of an award. After the passing of the decree the Frontier Courts Regulation came into force and the court of the District Judge became the court of the Senior Sub Judge. The first application for execution was made to the court of the Senior Subordinate Judge. This application was dismissed as unsatisfied. Later on the decree holder applied to the District Judge (new style) for transfer of certificate for execution of the decree. The transfer was granted and on the basis thereof an execution was presented to the Senior Subordinate Judge, Lyallpur. It was held that "the transfer certificate was issued by a court which was not the representative of the court which passed the decree. " It would be clear that it was a case where merely designation of the court was changed i. e. , to say that the court of the District Judge, Dera Ismail Khan came to be designated as the court of Senior Subordinate Judge after the passing of the Frontier Courts Regulation. This was, therefore, not a case where one court was abolished and then another court with a different Designation was established. In Raza Hussain's case (2) a decree was passed by the Subordinate Judge, Lucknow in a suit of a valuation between Rs. 1,000/- and Rs. 2,000/ -. At that time the court of the Subordinate Judge was the lowest court in which a suit between Rs. 1000/- and Rs. 2000/- could be instituted. Subsequently a Munsif was posted to Lucknow who had authority to try suits upto Rs. 20,000/ -. The decree holder filed his first three applications for execution in the court of the Subordinate Judge and the fourth application was made in the court of the Munsif and it was held that in such a case as this, the authority which was previously held by the Subordinate Judge passed automatically to the Munsif and that the Munsif's court must be considered for the purposes of execution, as the court which passed previous decrees in suits of that nature, although such decrees, as a matter of fact, were passed by the Subordinate Judge. Though this is true that merely by the alteration of the pecuniary limits of the court it does not cease to exist, as has been held in Abdul Sattar vs. Mohini Mohan Das{3), Suryanarayan Agrawalla vs. Maheshwar Keot , (4) and Choudhary Raghunandan Singh vs. Narain Das Bal Kishun Das, (5), but the above case does not support that contention. Mr. Agrawal has also urged that the court which actually passed the decree does not lose its jurisdiction to execute it by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another court. See Dasrath Prasad Singh vs. Baijnath Prasad Singh (6), Gowrammal vs. Lingappa Gowder (7 ). On the further question whether the other court to whose jurisdiction a subject matter had been subsequently transferred, has jurisdiction to entertain the execution application in respect of the decree passed by the former court, there is a controversy as noticed by the Supreme Court in Merla Ramanna vs. Nallaparaju (8 ). The Calcutta High Court in a series of decisions took the view that when the jurisdiction over the subject matter is transferred to another court that court is also competent to entertain the application for execution of the decree. But the Madras High Court in Ramier vs. Muthukrishan Ayyar (9) took a different view. The Supreme Court however, did not resolve the conflict in that case and held that: - "the court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings. " Recently a Full Bench of the Punjab High Court in Mehar Singh vs. Kasturiram (10) in a case where after a decree for possession of property and mesne profits had been passed, the local area, in which the property was situated, was transferred to a different court, held that : "it was open to the decree holder to apply for execution of the decree in the latter court, to which the local area had been transferred, and the court can directly entertain an application for execution without an order of transfer by the court which had in fact passed the decree. '* It was further held that: - "secs 37 and 38 when construed according to the language used therein empower the decree holder to file an execution application either to the Court that can effectively execute it and in the latter case it is not necessary to comply with the provisions of sec. 39 of the Code. " ;