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(a) Civil Procedure Code (V of 1908)‑‑

‑‑‑S. 113 & 0. XLVI, R.1‑‑Reference‑‑Law does not contemplate making of Reference at random or at large‑‑Provisions of S.113 & 0. XLVI, R.1, C.P.C. contain legal requirements and conditions and limitation of a proper Reference‑‑Superintendent (Civil) in the High Court at his pleasure, treating a letter sent by District Judge as Reference‑ Deputy Registrar (Judi.) of the High Court directed to obtain explanations and submit same to Court within a month.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑Ss. 38, 39 & 150‑‑Territory within jurisdiction of a Court transferred to another Court‑‑Proceedings pending in former Court do not get transferred automatically to the other Court or become liable to be transferred to the other Court save where such Court ceases to exist or is otherwise abolished and it is then that order of "transfer of business" of that Court becomes liable to be passed under S.150, C . P. C .‑‑Court seized of execution proceeding at time of change of territory, entitled to execute same under S.38, C.P.C. despite change of territory‑‑Decree‑holder if he consider necessary can move application under S.39 to have decree sent for execution to the other Court.

Venkamamidi Balakrishnayya v. Nannapaneni Linga Rao A I R 1943 Mad. 449 and Ranulal v. Daudas and others A I R 1957 Raj. 241 ref.

Nemo for Petitioner

With regard to an execution petition bearing No.36 of 1987 pending in the Court of Mr. Riaz Ahmad Khokhar, Civil Judge, Talagang, a Memo bearing NO‑107, dated 20‑4‑1987 has been addressed by Mir Muhammad Afzal, District Judge, Chakwal to the Registrar of this Court, requesting that in view of the allocation of part of Tehsil Talagang, where the relevant land is situated, to District Attock by the Government of the Punjab Notification No.1440‑861856‑R&0‑SI, dated 28‑9‑1986, the exec ufibn‑.Vetition may be transferred from District Chakwal to District Attock and entrusted .to some Court of competent jurisdiction for‑ disposal.

In the office, 'who memo came to be placed before the Superintendent (Civil) who seems to have recorded his approval on it to be passed on and ultimately some clerk recorded thereon as under:‑

"Please register it as Civil Reference and return to me, immediately." .

2. The matter has now come up before me for being heard as a Civil Reference. It deserves to be impressed upon all the concerned that the law does not contemplate the making of references to the High Court either in abstract or only at large. The subject is dealt with under Section 113 of the C . P . C . which provides:‑

"Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit."

The conditions and limitations for this purpose are contained in Rule 1 of Order XLVI of the C.P.C. which lays down that if a suit or an appeal in which the decree is not subject to appeal is pending in the Court or in the execution of such a decree a question of law arises whereabout it entertains reasonable doubt only, then, by drawing up statement of facts of the case and the point on which doubt is entertained, it can refer the point for decision of the High Court by stating its own opinion thereabout.

Apart from the fact that in this case the District Judge was not dealing with any proceedings of the stated nature, there is no reference at all drawn up in the required manner, therefore, not only that he could not be considered qualified for sending any problem to this Court but also there has not been referred by him anything at all for the opinion of the High Court and his mere letter could not be capable of meeting the legal requirements of a Reference. It is a matter of some surprise that the concerned officials appear to be ignorant even of the scope and form of a Reference and, yet, in complete oblivision of the relevant provisions of the law, they are desirous of the letters received in the office being treated as Civil References. Incidentally, this happens to be a third matter placed before me on the basis of such letters. I have not been able to discern as to whence may the Superintendent (Civil) or the said clerk have derived the power of treating a letter sent by a District Judge as a Civil Reference, to his mere pleasure, in absence even of compliance of legal requirements It seems desirable that the concerned officials may be called upon to indicate the source for such an authority. Deputy Registrar (Judi .) will obtain their explanations within a month to be placed before me for perusal.

3. However, I hove attended to the merit of the request made by the District Judge and found it to be completely untenable in law. 1 cannot think of any reason as to why in this case the Civil Judge concerned or even his District Judge may not have found the solution if they may have made a little effort to address themselves to the provisions made in the C . P. C . It is not understandable as to why the subordinate Judges are getting into the habit of sending up their problems through letters to this Court, without making any effort on their own part to understand the law and give effect thereto.

4. Do a Civil Judge and a District Judge have to be told even that there exists Section 38 in the C.P.C. It provides:‑

"A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."

The section immediately following it deals with the sending of decrees for execution to other Courts and, in addition to laying down certain conditions in that behalf, also provides that so can be done on the basis only of an application made by a decree‑holder for this purpose. The powers exercisable by the transferee Courts and the procedure to be followed by them in that behalf are contained in the succeeding sections.

5. ‑ Section 38 lays down that a decree will be executed either by the Court which passed it or by the Court to which the same is transferred. Where does then arise the question of transferring an execution proceeding already pending in a competent Court, as per the request of the 'learned' Civil Judge which has been graciously transmitted to this Court only mechanically by his 'learned' District Judge

6. There is a volume of case‑law available which deals with the situations resulting from the territories within the jurisdiction of one Court being transferred to another in consequence of notifications issued by the Government and also with the consequences arising from re‑adjustment of territorial limits of jurisdiction of subordinate Courts by the notifications issued by the High Court whereby the land in suit situated in one Court is assigned to another Court and there is concurrence of views that the cases/ proceedings pending in the former Court at the time of such re‑adjustment do not either get transferred automatically to the other Court or become liable to be transferred to the other Court for such a reason and when the former Court still exists it continues to retain seisin over the matters pending before it but in cases where such Court ceases to exist or is otherwise abolished, then orders of "transfer of business" of that Court become liable to be passed under Section 150 of the C.P.C. but an individual case does not come within its preview. Reference may ' usefully be made only to Venkamamidi Balakrishnayya v. Nannapaneni Linga Rao (A I R 1943 Mad. 449) wherein it was declared as under:‑

"Where after the passing of the final mortgage‑decree, the A Court which passed the decree, ceases to have territorial jurisdiction over any of the mortgaged properties and in pursuance of a notification, which has not the effect of transfer of business, another Court B acquires territorial jurisdiction over the said properties, the Court cannot execute the decree without transmission of the same from the A Court which passed it."

7. Again, in Ranulal v. Daudas and others A I R 1957 Raj. 241 it was held that:‑

"Once a suit is validly commenced in any Court, a subsequent change in the matter of jurisdiction does not affect the jurisdiction of the Court trying it, unless of course there is a clear provision of law which robs the Court of its jurisdiction to decide such a case expressly or by necessary implication."

and it was observed also that:‑

"When a particular area is transferred from the jurisdiction of one Court to that of another it does not mean a transfer of business from the first Court to the second Court because re‑arrangement of the territorial jurisdiction of the two Courts does not involve transfer of business."

then, after emphasizing that:‑

"the general principle of law undoubtedly is that where a Court has jurisdiction to entertain a suit or proceeding at the time of its institution, such jurisdiction is not lost simply by the subsequent transfer of the area or territory with reference to which the suit or proceeding was instituted."

conclusion was reached as under:‑

"That being so, it would be going too far .to hold that a suit or proceeding pending in one Court at the time of transfer of the local area is automatically removed or transferred. The correct position is that in such a case there is no transfer of business, at any rate, so far as pending suits and proceedings are concerned, for the simple reason that the Court wherein such business is in existence was validly seized of that business at the time of its commencement and still continues to have the power to deal with such business."

8. In the above state of the law, there is no warrant for transfer of the execution proceeding to District Attock and the Court at Chakwal seized of the execution petition is entitled to execute it under Section 38 of the C.P.C. and, if need be, it will be open to the decree‑holder to have the decree sent to the other Court for execution on the basis of application to be filed by him under Section 39 thereof.

9. The matter is disposed of with the above observations. Let the District Judge be informed accordingly.

K.B.A./A‑146/L Reference answered

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