IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 8TH DAY OF MARCH TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.1547 of 2007 BETWEEN: Syed Khasim Peera and others … PETITIONER(S) And Smt Shaik Mahaboob Bee … RESPONDENT(S) HON’BLE SRI JUSTICE N.RAVI SHAKAR CIVIL REVISION PETITION No.1547 of 2007 ORDER: The petitioners in this revision are judgment debtors (for short JDrs) in E.P.No.16 of 2005 on the file of the Court of Junior Civil Judge, Giddalur, Prakasam District (for short ‘executing Court’) to which the decree in question was transmitted for execution. They filed this revision challenging the order dated 13.03.2007 passed in E.A.No.29 of 2006 in the EP of the executing Court directing them to pay a sum of Rs.1,30,375/- towards the value of the movables mentioned in the decree of O.S.No.250 of 2000 on the file of the Family Court, Hyderabad on or before 02.04.2007 failing which arrest warrant should be issued against them for the recovery of the said amount. 2. Two points arise for determination in this revision and they are (i) Whether the executing Court can be held to be a Court of competent jurisdiction to entertain the execution petition as contemplated under Section 39 of the Civil Procedure Code (for short CPC); and (ii) If point No.1 is decided in favour of JDrs, whether the impugned order dated 13.03.2007 of the executing Court can be sustained on the principle enacted in Section 21 of CPC or any other ground as contended by the learned counsel for decree holder (for short DHr). 3. Both points arise in the following circumstances. The DHr Shaik Mahaboob Bi is the wife of the first JDr, Syed Khasim Peera. The second and third JDrs are the parents of the first JDr. The DHr filed the suit O.S.No.250 of 2000 in the Family Court, Hyderabad for recovery of a sum of Rs.1,92,375/- towards refund of dowry amount and also for return of certain jahez articles mentioned in the plaint schedule of the said Suit or in the alternative for recovery of their value assessed at Rs.1,30,375/- from the JDrs. It is not necessary to go into other details, but it would be sufficient to note that in the said O.S.No.250 of 2000 the JDrs remained ex parte and consequently the Family Court passed an ex parte decree dated 29.01.2003 granting the above two reliefs claimed by the DHr. 4. It appears that the decree dated 29.01.2003 passed by the Family Court, Hyderabad in O.S.No.250 of 2000 on its file was as per the procedure prescribed in the A.P. Civil Rules of Practice and Circular Orders 1980 dealing with execution proceedings was transmitted to the executing Court for execution. These details are not available and neither side could give these details but it would be sufficient to note that the decree was transmitted to the executing Court. Thereafter the present EP No.16 of 2005 was registered in the executing Court at the instance of the DHr. It must also be noted here that CRP No.4175 of 2006 filed by the JDrs against the dismissal of their application for condonation of delay in filing an application under Order IX Rule 13 of CPC for setting aside the ex parte decree has been dismissed on 11.12.2006. 5. The record shows that after the EP was registered an order dated 18.10.2005 was passed in it directing the JDrs to deliver the moveable articles i.e. Jahez articles worth Rs.1,30,375/- granted in the decree. Against that order the JDrs filed CRP No.5877 of 2005 on the grounds that their above mentioned IA for condonation of delay in filing the Order IX Rule 13 of CPC petition was pending and that the Family Court also has no jurisdiction to decide O.S.No.250 of 2000. That CRP was disposed of on 19.12.2005 directing the JDrs to approach the executing Court and seek stay of the execution proceedings. It may be noted that subsequently the JDrs condone delay petition was dismissed and CRP No.4175 of 2006 mentioned supra was also dismissed confirming that order. These orders are mentioned only as they are found on record and they do not in any manner come in the way of disposal of this present CRP. Both counsel could not also show any reason to keep this CRP pending in view of the orders in the above two CRPs as they were disposed of and the orders passed in them became final. 6. It appears from the impugned order of the executing Court that pursuant to the earlier above order dated 18.10.2005 regarding delivery of the Jahez articles passed by the executing Court, the DHr with the help of the bailiff and police went to execute the said order for recovery of movables but they found that the said movables were not available in the hands or custody of the JDrs. The impugned order shows that thereafter the DHr filed the present E.A.No.29 of 2006 for arrest of the JDrs and their detention in the civil prison on the allegation that they screened away all the moveables in question from their house and that therefore they are liable to be arrested and detained in civil prison as contemplated under Order 21 Rule 31(1) of CPC. The JDrs filed counter in the said E.A.No.29 of 2006 resisting it on various grounds. After considering the objections of the JDrs and holding an enquiry into the matter the executing Court passed the present order dated 13.03.2007 in E.A.No.29 of 2006 which reads as follows. “In view of my above discussion, I hold that the petitioners are entitled for the relief as prayed for. The respondents are directed to pay the value of Rs.1,30,375/- as per the decree of family court in O.S.No.250 of 2000 since the material available on record discloses that no movables were found by the amin in the house of respondents. The respondents are directed to pay an amount of Rs.1,30,375/- on or before 02.04.2007 failing which arrest warrant will be issued for recovery of the amount.” It is assailing this order the present CRP is filed. Points are now taken up. Point No.1:- 7. The objection falling under this point relating to the competency of the executing Court to entertain the EP arose in the course of arguments in view of Section 39 CPC. The learned counsel for J.Drs argued about this objection and contended that since the decree in question was passed by a Family Court it can be executed by that Court or another Family Court having jurisdiction but not the executing Court. He also pointed out that as the decree in question was passed for a sum exceeding Rs.1 lakh the executing Court being a Court of Junior Civil Judge the pecuniary jurisdiction of which is limited to Rs.1 lakh cannot on that ground also be said to be a Court of competent jurisdiction to execute the said decree. The learned counsel for the D.Hr pointed out that this objection was not raised before the executing Court and therefore the J.Drs cannot be permitted to raise it now. It is true that this objection relating to competence of the executing Court is not taken in the counter of the JDrs before the executing Court or they did not raise the same in the grounds of the CRP also. However as this is a question of law relating to the very jurisdiction of the executing Court the same is considered and taken up for determination. To determine this point Section 39 of CPC must be looked into and it reads as follows. “Transfer of decree:-- (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction,-- (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) if the decree directs the sale or delivery of immoveable property situate outside the local limits of the jurisdiction of the Court which passed it, or (d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other court. (2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction. (3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. (4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction." 8. It may be noted that Section 39(1) of CPC categorically says that the Court which passed the decree may on the application of the decree holder can send it for execution to another Court but the latter Court should be of “competent jurisdiction” (emphasis supplied). It may then be noted that Section 39(3) of CPC explains what is meant by a Court of competent jurisdiction for the purposes of Section 39 of CPC. It says that a Court shall be deemed to be a Court of competent jurisdiction only if at the time of making the application for transfer of decree to it if such Court would have jurisdiction to try the suit in which the decree is passed. Then Section 39(2) of CPC says that the Court which passed a decree can also of its own motion send it for execution to a subordinate Court but it should be of competent jurisdiction. The language of Section 39(3) of CPC is clear and it says that the Court to which the decree is transmitted for execution should also be competent to try the Suit in which the decree is passed. Thus it should be seen that the expression ‘Court of competent jurisdiction’ is used with significance in Section 39 of CPC clearly showing that such Court must be a Court competent to try the suit in which the decree is passed and which is sent to it for execution. 9. In the present case the decree in question was passed by the Family Court, Hyderabad and it is clear that the same was passed in exercise of the jurisdiction conferred upon it by the Family Courts Act 1984. A Photostat copy of the decree dated 29.01.2003 passed by the Family Court, Hyderabad is made available in record and the decree is extracted from the claim portion covering the reliefs granted. “Claim:- This suit is filed U/s.26 O-7 R.1 to 8 of CPC R/w. Sec.7 of the Family Courts Act, praying the Court to grant a decree for Rs.1,92,375-00 together with subsequent interest thereon at 18% per annum from the date of this suit i.e. 18-10-2000 till realization and further prayed to deliver of plaint schedule movable properties or in alternative in the event of any damage, diminition of value, issuing etc., awarding Rs.1,30,375/-ps being the value thereof awarding maintenance @ Rs.2,000/- PM from the date of this suit i.e. 18-10- 2000 onwards and to award costs of the suit. Suit presented on:- 30-10-2000 Court fee:- NIL Decree:- This suit is coming before me for final disposal in the presence of Plaintiff, the Defendants called absent set-exparte, this Court doth Judgment and decree that the suit of the Plaintiff be and is hereby decreed and ordered as here-under. 1. That the Defendants be and are here-by directed to pay an amount of Rs.1,92,375/- (Rupees one Lakh Ninty Two Thousand and Three Hundred and Seventy Five only) to the plaintiff from the date of the suit i.e. 2-11-2000 with 18% interest per annum till realisation. 2. That the Defendants further directed to return the Plaint Schedule properties or in alternative to Rs.1,30,375-00 (Rupees one Lakh thirty Thousand and Three Hundred and Seventy Five only) in the event of any damage, diminition of value, missing etc. 3. That the Defendants further directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only) PM from the date of the suit i.e. Dt:2-11-2000. 4. That there is no order as to costs in this suit.” 10. A perusal of the decree would thus show that the Family Court passed it in exercise of its jurisdiction conferred upon it by Section 7 of the Family Courts Act and it is seen that the claim was brought under sub-clauses (c) and (f) of the Explanation to Section 7(1) of the said Act. It may also be noted that Section 8 of the said Act says that where a Family Court has been established for an area then no other Court shall have jurisdiction to deal with the matters specified in Section 7. It is therefore admittedly clear that if a Family Court is established for the area where the executing Court is situate then that Court alone would have jurisdiction to execute the decree in question and on the other hand if no family court is established for the said area then the claim in the suit can be tried by any other competent Court under law. Thus going by the above rule it cannot be said that the executing Court would have jurisdiction if a family court is established for that area and even if no family court is established even then the executing Court which is a Junior Civil Judge Court would have no jurisdiction to entertain it as its pecuniary jurisdiction is limited to Rs.1 lakh and as the decreetal amount mentioned in the decree in the suit O.S.No.250 of 2000 exceeds that pecuniary limits. Thus in either case it cannot be said that the present executing Court is the court of competent jurisdiction to execute the decree in question as contemplated under Section 39(1) of CPC. 11. The learned counsel for the DHr could not bring to my notice any provision of law or any precedent to show that the executing Court in the present case i.e. the Court of Junior Civil Judge can be said to be a Court of competent jurisdiction as contemplated under Section 39(1) of CPC. It appears that a mistake was committed by the concerned authority which transmitted the decree in question to the executing Court and further a mistake was committed by the executing Court in entertaining the execution petition and it further appears that Section 39 of CPC was not taken to their notice. Thus for the above reasons it is held that the executing Court in the present case is not a Court of competent jurisdiction as stipulated in Section 39(1) read with Section 39(3) of CPC and this point is decided against the DHr. To wriggle out of this situation the learned counsel for the DHr relied upon the rule or principle enacted in Section 21 of CPC to sustain the impugned order and I will deal with this contention under point No.2. Point No.2: 12. Now turning to this point, Section 21 of CPC which deals with objections to jurisdiction of a Court should be noticed. Sub- section (1) of Section 21 of CPC says that an objection to the place of suing or the territorial jurisdiction of a Court to try a suit should be taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and if such an objection is not taken at that stage it cannot be allowed by any appellate or revisional Court unless it is shown that there has been a consequent failure of justice. 13. Similarly sub-Section (2) of Section 21 of CPC says that an objection to the competence of a court with reference to the pecuniary limits of its jurisdiction should also be taken in the first instance like an objection to the territorial jurisdiction of the Court which is already mentioned supra and unless it is so taken it cannot be permitted to be taken in appeal or revision unless it is shown that there has been a consequent failure of justice because of lack of such jurisdiction. Thus sub-sections (1) and (2) of Section 21 of CPC deal only with objections relating to the territorial jurisdiction and pecuniary jurisdiction of a Court in respect of suits. 14. Then sub-section (3) of Section 21 of CPC speaks about objections relating to the competence of the executing Court only with reference to its territorial limits and it enacts the same principle which is enacted in sub-sections (1) and (2). It should be noted that Section 21(3) of CPC is conspicuously silent about the objections as to the pecuniary jurisdiction of an executing Court whatever may be of its grade. It should be noted that the legislature provided for waiver of objections to the territorial jurisdiction of an executing Court and its consequences and therefore it must be held that it provided only for such waiver but not for waiver of objections to the pecuniary jurisdiction of an executing Court which is again a civil Court with reference to its competency to execute a decree as stipulated in Section 39(1) of CPC. As a special provision for waiver of objections to the territorial jurisdiction alone of an executing Court is provided for under Section 21(3) of CPC it follows that sub-section (2) of Section 21 of CPC and the principle enacted therein cannot be applied to an executing Court with regard to its pecuniary jurisdiction and the legislature must be held to have deliberately excluded that provision for executing Court with a view that a court of competent jurisdiction contemplated under Section 39(1) of CPC must be competent even pecuniary jurisdictionwise and an objection to it cannot be waived. There is another reason also which supports the contention of the JDrs. 15. It may be noted that at present under the A.P. Civil Courts Act 1972 only the District Court has got unlimited pecuniary jurisdiction whereas the pecuniary jurisdictions of a Senior Civil Judge’s Court and a Junior Civil Judge’s Court are restricted to Rs.10 lakhs and Rs.1 lakh respectively. Now suppose if a decree falling within the pecuniary jurisdiction of a Senior Civil Judge’s Court or a District Court is transmitted to a Junior Civil Judge’s Court for execution it may involve properties of more than Rs.1 lakh which are to be proceeded against in execution. In such a case if such properties are attached there is a possibility of a third party filing a claim petition under Order XXI Rule 58 of CPC or other claims to such property inviting the executing Court to uphold his title to the properties sought to be proceeded against while claiming that the judgment debtor concerned has no title to such properties. A claim under Order XXI Rule 58 of CPC is triable as a suit. In such a contingency there is every possibility of the decree holder himself again putting forth an objection to the jurisdiction of the Junior Civil Judge on the ground that the Junior Civil Judge’s Court which would be the executing Court will not have pecuniary jurisdiction to try the claim. The same problem may arise when a decree is sent to a Senior Civil Judge Court for execution where the value of the properties sought to be proceeded against may fall within the jurisdiction of the District Court having regard to the value of the claims granted in the decree transmitted. It is clear that to avoid these complications and problems Section 39 of CPC has been amended by the CPC Amendment Act of 1977 stipulating that the Court to which the decree is sent for execution must also be a Court of competent jurisdiction to try the suit both with regard to its inherent jurisdiction and also pecuniary jurisdiction. The above problems will not arise in case the executing Court has no territorial jurisdiction if it is otherwise competent having inherent jurisdiction and also pecuniary jurisdiction to try the suit in which the decree is passed and transmitted. In fact even Section 21(3) of CPC has been introduced by means of CPC Amendment Act 1977 only. 16. In the above circumstances the contention of the learned counsel for the DHr that the principle relating to waiver of the objections relating to pecuniary jurisdiction enacted in Section 21(2) of CPC applies to the present case cannot in my opinion be accepted. The learned counsel for the DHr also could not bring to my notice any provision of law or a decision to take a different view in the matter. One circumstance which can be noticed is that in the present case no claim petitions have been filed by third parties. That is however not a ground to entertain the above argument of the learned counsel for the DHr as what is involved is a principle or rule enacted in Section 39(1) of CPC regarding the competence of the executing Court regarding its jurisdiction to try the suit in which the decree is passed. For the aforesaid reasons this point is also decided against the DHr. 17. In view of the findings under points 1 and 2 and for the aforesaid reasons it follows that the impugned order and the EP proceedings initiated in the executing Court should be set aside as it is not a Court of competent jurisdiction to execute the decree as stipulated in Section 39(1) read with Section 39(3) of CPC. 18. Accordingly the CRP is allowed. It shall be open for the DHr to take steps for getting the decree retransmitted to a Court of competent jurisdiction for its execution in terms of Section 39 of CPC and seek execution of it. The proceedings sheet in the CRP shows that pursuant to an interim order of this Court half of the amount ordered to be paid by the impugned order has been deposited in the executing Court by the JDrs and it has also been withdrawn by the DHr. No further dispute shall be raised with regard to this amount as DHr is admittedly the wife of the first JDr and the decree passed in the suit O.S.No.250 of 2000 has become final. The DHr may apply for execution in the competent Court for the balance amount and also for recovery of the other amounts ordered in the decree. No costs. _____________________ N.RAVI SHANKAR,J 8th March, 2011 CVRK