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Shammi Kapoor v. Kishan Chand - WRIT - C No. 33450 of 2007 [2007] RD-AH 13329 (1 August 2007)


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Court No.6

Civil Misc. Writ Petition No. 33450 of 2007

Shammi Kapoor  ......... Petitioner


Kishan Chand  .............. Respondents


Hon'ble Janardan Sahai, J

It appears that a money decree was passed against the petitioner by the Civil Judge, Delhi. The decree holder applied for execution. The execution case was transferred by the Civil Judge, Delhi to the District Judge Agra, who transferred the same to the Court of Special Additional District Judge (SC/ST) Agra.  The petitioner filed objections challenging the jurisdiction of the Additional District Judge. The objections were dismissed. Counsel for the petitioner submitted that the case should have been transferred  to the court of the lowest grade having jurisdiction and not to the Additional District Judge. He relied upon the provisions of Section 39 (3) CPC, which provides that a court shall be deemed to be a Court of competent jurisdiction  if, at the time of making the application for the transfer of the decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.  The case was transferred by the Civil Judge, Delhi to the District Judge Agra. The Court of District Judge/Additional District Judge is a court of unlimited pecuniary jurisdiction. It is competent to try the case  and there is nothing in Section 39 CPC on the basis of which it may be said that the Court of Additional District Judge is not a court of competent jurisdiction.  

Counsel for the petitioner relied upon AIR 1940 Calcutta 161 Firm Ganeshdas Badrinarain Vs. Amuluk Chand Oswal  in which it was held that there is no express  provision in Section 39, clause (1) that the transferee court may be a Court of any pecuniary jurisdiction and that the transferee Court contemplated by S. 39 must be therefore a court of competent jurisdiction, that is, a Court which has the same pecuniary jurisdiction as the transferor Court.    The decision does not help the petitioner.  Same jurisdiction in the context  means that the transferee court must have jurisdiction to decide the case and does not mean that the pecuniary jurisdiction of the transferee court cannot be more than the pecuniary jurisdiction of the transferor court when the transferee court is a court of competent jurisdiction. This is clear from sub Section 3 of Section 39, which only requires the transferee court to be a court of competent pecuniary jurisdiction. The Court of Additional District Judge has the pecuniary jurisdiction to decide the suit and therefore the view taken by the court below does not suffer from any error.


Dt. 1.8.2007



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