P.N. Kalathi Mudaliar vs Ellammal on 19 December, 1963

    P.N. Kalathi Mudaliar vs Ellammal on 19/12/1963

ORDER

   Venkatadri, J.

   1. The question that arises in this civil revision petition is whether the
Sub Court, Vellore, has got jurisdiction to set aside the ex parte order passed
in a petition filed by the petitioner in the Sub Court, Chittoor.

   2. The petitioner filed a petition 0. P. No. 25 of 1952 in the Sub Court,
Chittoor, Under Section 5 of the Madras Hindu (Bigamy Prevention and Divorce)
Act, 1949 for dissolution of his marriage with Ellammal, the respondent Therein.
On 2-8-11952 the respondent was declared ex-parte and an order was passed by the
Chittoor Sub Court, directing dissolution of marriage. The parties were
residents of Sholinghur, which was originally part of the Chittoor Judicial
District, and hence the petition 0. P. No. 25 of 1952 was filed in the Chittoor
Sub Court. Subsequent to the order passed by that court, Sholinghur came within
the jurisdiction of North Arcot Dt, under Act 30 of 1953. On 11-6-1959, the
respondent filed an application Under Section 150 and Order 9 Rule 13 C. P. C.
and Section 21 of the Central Act 25 of 1955, to set aside the ex parte order of
dissolution of marriage dated 2-8-1952. This application was filed and numbered
as I. A. No. 300 of 1959 on the file of the Sub Court, Vellore.. The petitioner
resisted this application contending that it was not maintainable. The Sub Court
agreeing with the contention of the petitioner dismissed the application filed
by the respondent for setting aside the ex parte order. On appeal the learned
District Judge, North Arcot at Vellore held that the application of the
respondent was maintainable and reversed the order of the learned Subordinate
Judge, It is against the order of the District Judge that the pro-sent civil
revision petition is filed by the husband (petitioner).

   2a. When the order dated 2-8-1952 was passed in O. P. 25 of 1952, Madras Act
VI of 1949 (The Madras Hindu (Bigamy Prevention and Divorce) Act) was in force.
The Central Act XXV of 1955 (The Hindu Marriage Act) came into force long after
that date, that is on 18-51955. Section 4 (b) of the Central Act provides that-

     "any other law in force immediately before the commencement of this Act
shall cease to have effect in so far as it is inconsistent with any of the
provisions contained in this Act."

   It is also necessary to refer to Section 29 Clause (3) of that Act which
says:

     "Nothing contained in this Act shall affect any proceeding under any law
for the time being in force for declaring any marriage to be null and void or
for annulling or dissolving any marriage or for judicial separation pending at
the commencement of this Act, and any such proceedings may be continued and
determined as if this Act had not been passed."

   The petitioner (husband) contended that since O. P. 25 of 1952 was not
pending at the commencement of Act XXV of 1955, the resident is disentitled to
file an; application to set aside the ex parte order passed against her under
Madras Act VI of 1949. The learned District Judge negatived this contention and
held that the respondent would not lose her remedy under Order 9 Rule 13 C. P.
C. by reason of the repeal of the Madras Act by the Central Act. I am of opinion
that the learned District Judge came to the right conclusion. Further, Section
29 (3) of the Central Act keeps alive the rights and remedies that have accrued
due under the previous Acts in force such as the Madras Act VI of 1949. The
Central Act also reiterates the provision contained in the Madras Act that all
the provisions of the Civil Procedure/ Code shall apply and this would indicate
that Parliament did not intend to destroy the procedural remedies that the
parties litigating under the repealed Acts had acquired. The Central Act also
does not contain any provision which debars a person against whom an ex parte
order of dissolution of marriage has been, passed previously, from taking any
proceedings to have that order set aside under 0rder 9 Rule 13, C. P. C.

   3. The next Question for consideration relates to the jurisdiction of the
Vellore Sub Court to entertain the petition filed by the respondent to set aside
the ex parte order. Sholinghur, wherein the parties are residing, was originally
within the territorial jurisdiction of the Chittoor Suto Court. On the formation
of the Andhra State, Sholinghur was tacked on to the territorial jurisdiction of
the Vellore Sub Court and Chittoor Sub Court became part of the Andhra State. As
per G. O. 3058 Home Dept, D/- 29-9-1953, Vellore Sub Court got territorial
jurisdiction over Sholinghur. It was contended by the petitioner in the court
below that the. order of dissolution having been, passed by the Chittoor Sub
Court, it was not open to the respondent to go to the Vellore Sub Court to have
the ex parte order set aside and that it is only the court which passed the ex
parte order that son set it aside. The learned District Judge rightly repelled
this contention and came to the conclusion that it is only the Vellore Sub Court
that has got jurisdiction. The petition itself was filed Under Section 150, C.
P. C. and Order IX, Rule 13 C. P. C, Section 150 provides that-

     "Where the business of any court is transferred to any other court, the
court to which the business is so transferred shall have the same powers and
shall perform the same duties as those respectively conferred and imposed by or
under this Code upon the court from which the business was so transferred."

   This court has held in a number of decisions that where the business of a
court is transferred to another court, it is only the latter court that can
decide the question raised.. In Srinivasa Rao v. Hanumantha Rao, AIR 1922 Mad 10
a Bench of this court held that the expression "the court by which the decree
was passed' cannot be taken to be limited to the original court and that Rule 13
of 0. IX is an enabling one which prescribes what is to be done in the ordinary
course to get an ex parte decree set aside. The learned judges pointed out that
the rule does not say that the court that passed the decree is the only court
that can set it aside and there is nothing restrictive in the wording. They
accordingly held that the court to which the whole business of the Court which
passed the decree is transferred is entitled on application to it to set aside
an ex parte decree passed by the other court.

   4. A similar question arose for decision before another Bench of this Court
in M. Guruswamy Naicker v. Sheikh Muhammadhu Rowther, AIR 1923 Mad 92. Where
business of the court that granted the injunction was transferred to another
court and an application under Order 39 Rule 2 (13) was made to the latter court
for punishing the breach of the injunction, it was held that the court had
jurisdiction to entertain the petition Under Section 150. The Bench observed :

     "Order 39 R. 2 (3) does not say that it is only the court granting the
.injunction that should make the order under it, so that there is nothing in
that rule which excludes the application of Section 150 by bringing it within
the words 'save as otherwise provided for."

   A question pertaining to jurisdiction also came up for consideration before a
Bench of this court in Naracinharaju v. Brundavanasahu, 1943-2 Mad LJ 31 : (AIR
1943 Mad 617). The facts in that case are : a preliminary mortgage decree was
passed in 1925 by the Sub-ordinate Judge, Berhampore and it became final in
1926,. An execution, application for the sale of the property was filed in 1929
and when it was pending the Government of India (Constitution of Orissa) Order
1936, was passed by His Majesty in Council. Under that order, Orissa which was
formerly a Dart of the Province of Bihar and Orissa was formed into a separate
Province and was placed within the jurisdiction of the High Court of Judicature
at Patna. A portion of the Ganjam Dt. which was formerly in Madras presidency
was transferred to and became a part of Orissa. The Sub Court at Berhampore was
in the area so transferred. The remaining portion of the Ganjam Dt. which
remained in the Madras Presidency was made a part of the Vizagapatam District.
It appeared that all the properties covered by the final decree were situated
within the are that was retained in the Madras Presidency. One of the judgment-
debtors filed an application in the Sub-Court, Berhampore, for scaling down the
decree. Another application was filed by the same judgment-debtor in the Sub-
Court, Chicacole. Both the applications were dismissed and the applicant thereon
preferred civil revision petitions to the Madras High Court. The learned Judges
in the course of their judgment after referring to Section 150 C. P. C. observed
as follows at page 39 (of Mad LJ) : (at p. 625 of AIR) :

     "If therefore the court of the Subordinate Judge of Chicacole can be
regarded to be a court to which (in view of the fact that the mortgaged property
came to be within its jurisdiction after the Order in Council) the business of
the Court of the Subordinate Judge of Berhampore is transferred, the former
Court will then have the same powers and will he liable to perform the same
duties as the latter had before the transfer of sun business. In short, in
respect of the business thus transferred, the transferee court will be in the
same position as the court which passed the decree. The question then is whether
the business of the court of the Subordinate Judge, Berhampore, can be found to
have been transferred to the court of the Subordinate Judge, Chicacole in the
circumstances existing in the present case. Whatever might have been said in
regard to execution applications to which Section 37, C. P. C. in terms applied,
the question as to fresh and independent applications, as the application Under
Section 19 of Act IV of 1938. has now been found to be, is a vary different one.
In dealing with an application, for setting aside an ex parte decree made to a
court to which part of the territorial jurisdiction of another court that had
passed the decree had been transferred, along with the locality in which the
properties were situate, a Division Bench of this court in 42 Mad LJ 344 : (AIR
1922 Mad 10) held" that the words used in Order. 9. Rule 13, C. P. C. providing
that it should be made to 'the court by which the decree was passed' were not so
definite and precise as to exclude the possibility of the application being
entertained by the court which had subsequently come to be seized of the
jurisdiction".

   The principles laid down in the above cases will certainly apply to the facts
of the present case. The business of the Chittoor Sub Court having been
transferred to the Vellore Sub Court, the application, filed by the respondent
in the latter court for setting aside the ex parte, order is certainly
maintainable.

   5. The civil revision petition is dismissed, but in the circumstances without
costs.