1. The present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the petitioner herein - original defendant to quash and set aside the impugned order dated 26/07/2012 passed by learned Principal Civil Judge, Jetpur below Exh.34 in Regular Execution Application No.6 of 2010, by which, learned Judge has held that as such decree, which is sought to be executed by the petitioner herein - original defendant, is passed by the court of learned Civil Judge (S.D.), Gondal and unless and until it is transferred by that Court to it, he has no jurisdiction to execute the said decree.
2. Facts leading to the present civil revision application, in nutshell, are as under:
The respondents herein - original plaintiffs instituted Special Civil Suit No.96 of 1995 against the petitioner herein - original defendant in the court of learned Civil Judge (S.D), Gondal. That there was a consent decree passed by learned Civil Judge (S.D.), Gondal by judgement and decree dated 21/10/2002. That according to the petitioner herein - original defendant, respondents herein - original plaintiffs did not act as per the said consent decree and that disputed property in question is situated within territorial jurisdiction of the learned Principal Civil Judge, Jetpur, the petitioner herein - original defendant filed Regular Execution Application No.6 of 2010 in the Court of learned Principal Civil Judge, Jetpur for execution of the consent judgement and decree passed by learned Civil Judge (S.D.), Gondal dated 21/10/2002 in Special Civil Suit No.96 of 1995.
In the said execution petition, respondents herein - original plaintiffs raised objection by submitting application Exh.34 that decree, which is sought to be executed by the petitioner herein- original defendant, has been passed by learned Civil Judge (S.D.), Gondal and unless and until it is transferred by that Court for execution of that decree, the Court at Jetpur has no jurisdiction to execute the said decree. The said application was opposed by the petitioner herein - original defendant by submitting that as such at the relevant time when the suit was instituted in the Court of learned Civil Judge (S.D.), Gondal proper valuation was not made and suit was valued for court fees at the rate of Rs.300/- and in fact the valuation for court fees ought to have been fixed at Rs.2,50,000/- and, therefore, learned Civil Judge (S.D.), Gondal ought to have exercised the jurisdiction as regular Civil Court and not as a Special Court and, therefore, it is held that learned Civil Judge (S.D.), Gondal exercised the special jurisdiction to exercise its ordinary jurisdiction and suit property is situated within territorial jurisdiction at Jetpur, the Jetpur Court has jurisdiction to execute the decree, the learned Executing Court did not accept the case of the plaintiffs and considered the fact that the decree, which was sought to be executed by the plaintiffs is passed by learned Civil Judge (S.D.), Gondal and decree was not transferred to Court at Jetpur for execution, learned Executing Court by judgement and order dated 26/07/2012 allowed the said application Exh.34 and has held that unless and until the decree is transferred by the Court at Gondal i.e. the Court, who has passed the decree, to the Court at Jetpur, Jetpur Court has no jurisdiction to execute the decree, which is sought to be executed.
3. Being aggrieved by and dissatisfied with the judgement and decree passed by learned Principal Civil Judge, Jetpur below Exh.34 in Regular Execution Application No.6 of 2010, the petitioner herein - original defendant has preferred the present civil revision application u/s.115 of the Code of Civil Procedure.
4. Mr.Bhavesh Trivedi, learned advocate appearing on behalf of the petitioner herein – original defendant has submitted that learned Executing Court has materially erred in allowing the application Exh.34 in Regular Execution Application No.6 of 2010 submitted by the respondents herein – original plaintiffs and has committed an error in holding that the Court at Jetpur has no jurisdiction to execute the decree unless and until it is transferred by the concerned Court, who has passed the decree.
It is further submitted by Mr.Bhavesh Trivedi, learned advocate appearing on behalf of the petitioner herein that learned Executing Court has failed to consider the scope of provision of Bombay Civil Courts Act and failed to consider that learned Civil Judge (S.D.), Gondal, who passed the decree has exercised its original jurisdiction. It is submitted that in view of sections 24 and 25 of the Bombay Civil Courts Act, learned Civil Judge (S.D.), Gondal in addition to his special jurisdiction also exercised its ordinary jurisdiction and, therefore, considering the correct valuation of Rs.2,50,000/-, learned Civil Judge (S.D.), Gondal as such exercised its ordinary jurisdiction and, therefore, as the subject property of the suit is within territorial jurisdiction of the learned Civil Civil (J.D), Jetpur (at the relevant time) and, therefore, learned Civil Judge (S.D), Jetpur always have jurisdiction to execute the decree in its local limits.
Mr.Bhavesh Trivedi, learned advocate appearing on behalf of the petitioner herein – original defendant has submitted that learned Executing Court has failed to take note of provision of the Suit Valuation Act as well as Bombay Court Fees Act. It is submitted that in view of the provisions of the aforesaid Acts, the jurisdiction to try the suit would be on the basis of valuation fixed for the purpose of Court fees and it would govern the valuation for the purpose of the jurisdiction. It is submitted that the plaintiffs have stated that the relief claimed in this suit is not susceptible for monetary evaluation and, therefore, Court fee stamp of Rs.30/- was affixed. It is submitted that as such value of the property was Rs.2,50,000/- and though the suit was filed by plaintiffs and labelled as special civil suit, in fact it was Regular Civil Suit and, therefore, decree passed by learned Civil Judge (S.D.), Gondal has exercised ordinary civil jurisdiction and not special jurisdiction under sections 24 and 25 of the Bombay Civil Court's Act. In view of the above submissions, he has relied upon decision of the Hon'ble Supreme Court in the case of Maliben Kamabhai Harijan and another V/s. Jagjivan Nanji dead by L.Rs. and others reported in AIR 2004 Gujarat 230.
By making above submissions and relying upon above decision, it is requested to admit/allow the present civil revision application by holding that Regular Execution Application filed by the petitioner herein – original defendant in the Court of learned Principal Civil Judge, Jetpur is maintainable and Court at Jetpur i.e. learned Principal Civil Judge, Jetpur has jurisdiction to execute the decree, which is sought to be executed.
5. Heard Mr.Bhavesh Trivedi, learned advocate appearing on behalf of the petitioner herein – original defendant at length and considered the impugned judgement and orders/decree passed by learned Executing Court.
6. At the outset, it is required to be noted that as such the decree, which is sought to be executed by the petitioner herein – original defendant by filing Regular Execution Application is admittedly passed by learned Civil Judge (S.D.), Gondal by judgement and decree dated 21/10/2002 in Special Civil Suit No.96 of 1995. Therefore, as such the decree, which is sought to be executed, is passed by learned Civil Judge (S.D.), Gondal and not by learned Civil Judge (J.D.), Jetpur. Admittedly, learned Civil Judge (S.D.), Gondal has exercised special jurisdiction and has passed the consent judgement and decree in Special Civil Suit No.96 of 1995. At this stage, it is required to be noted that as the petitioner herein – original defendant at the relevant time did not raise any objections with respect to the proper valuation of the suit property; jurisdiction and court fees and learned Civil Judge (S.D.), Gondal tried the said suit as Special Civil Suit. At that stage, petitioner herein – original defendant to raise any objection that as such the Court is required to exercise regular jurisdiction and if such a contention would have been raised at that stage, in that stage, the suit treated as ordinary jurisdiction would have been tried by learned Civil Judge (J.D.), Jetpur.
That thereafter, the petitioner herein – original defendant had instituted Regular Execution Application in the Court of learned Principal Civil Judge, Jetpur to execute the consent judgement and decree passed by learned Civil Judge (S.D.), Gondal in Special Civil Suit No.96 of 1995. It is an admitted position that the Court, who has passed the decree has not transferred the decree to the Court of learned Principal Civil Judge, Jetpur for execution. Considering the provisions of Order 21 of the Code of Civil Procedure, it is cardinal principal of law that unless and until the decree is transferred by the Court, which has passed decree except the Court, which has passed the decree, no court has jurisdiction to execute the decree. Even while transferring the decree to the Court having jurisdiction to execute the decree, the Court which has passed the decree, is required to follow the procedure as required Order 21 of the Code of Civil Procedure. Considering the aforesaid facts and circumstances of the case, may be the property situated within territorial jurisdiction of the Court at Jetpur, unless and until the decree is transferred by learned Civil Judge (S.D.), Gondal, which has passed the decree to the Court at Jetpur, learned Principal Civil Judge, Jetpur would not have any jurisdiction to execute the decree, which is passed by another Court. Under the circumstances, no illegality has bee committed by learned Executing Court in allowing application Exh.34 and holding that unless and until decree is transferred from learned Civil Judge (S.D.), Gondal to the court at learned Principal Civil Judge, Jetpur for execution, learned Principal Civil Judge, Jetpur has no jurisdiction to execute the decree.
7. Now so far as submission made on behalf of the petitioner that considering the valuation of the property at Rs.2,50,000/-, it is to be held that learned Civil Judge (S.D.), Gondal exercised ordinary jurisdiction and, therefore, learned Civil Judge (J.D), Jetpur would have jurisdiction and jurisdiction, which is now available to the learned Principal Civil Judge, Jetpur and, therefore, property is situated within territorial jurisdiction of the learned Principal Civil Judge, Jetpur cannot be accepted. learned Civil Judge (S.D.), Gondal has exercised the jurisdiction as special jurisdiction in Special Civil Suit No.96 of 1995 and as stated hereinabove, at the relevant time, the petitioner herein did not raise any objection at all. Under the circumstances, when learned Civil Judge (S.D.), Gondal had exercised jurisdiction in Special Civil Suit No.96 of 1995 and has passed consent decree, only learned Civil Judge (S.D.), Gondal has jurisdiction to execute the decree after following due procedure as required under Order 21 of the Code of Civil Procedure and if it is found that property is situated within jurisdiction of the another court, in that case, that Court is required to transfer to the concerned Court where the property is situated.
8. In view of the above and for the reasons stated hereinabove, no illegality has been committed by learned Executing Court, which calls for interference of this Court in exercise of powers u/s.115 of the Code of Civil Procedure. Hence, the present civil revision application deserves to be dismissed and is accordingly dismissed. No costs.
sd/-
[M.R.SHAH,J] *dipti