ORDER
Srinivasan, J.
1. The petitioners obtained a decree in a suit for partition and also got a final decree. The final decree was challenged in A.S. No. 694 of 1982 in this Court. By consent, an amount of owelty was fixed and a judgment was rendered on the basis of consent on 9.10.1991. In spite of the judgment being one by consent, the defendants filed Letters Patent Appeal. There was a long delay in representation of the papers viz., 972 days. The court, while condoning the delay, rejected the appeal on the ground that the owelty was increased with the consent of both parties and the appeal was not sustainable. That order was passed on 31.1.1995. The plaintiffs had deposited the owelty amount on 2.11.1995. A Commissioner was appointed and the Commissioner has to construct a wall to demarcate the property allotted to the shares of the parties. At that stage, Tamil Nadu Act 28 of 1995 was passed and a question was raised as to whether the Subordinate Judge could continue the proceedings or the matter should go before the District Munsif. According to the defendants, the suit was valued at Rs. 15,100 and therefore, the matter should be heard only by the District Munsif. He filed a memo to the effect that the suit value being Rs. 15,100, the proceedings should be transferred to the court of the District Munsif. He also contended that by virtue of Section 4 of Act 28 of 1995, the court had no option but to transfer the proceeding.
2. On the other hand, the contention of the plaintiffs was that the market value of the properties for the purpose of the suit was Rs. 30,000 and odd and only for the purpose of payment of court-fee, the value was Rs. 15,100 being the half share was adopted. The matter was argued before the learned Subordinate Judge. It is represented by counsel that though the matter was argued on three occasions, no order has been passed by the Subordinate Judge. He is keeping the proceedings pending without passing any order either in favour of the plaintiffs or in favour of the defendants. It is at this stage, this revision petition has been filed by the plaintiffs under Article 227 of the Constitution of India seeking a direction to the Subordinate Judge to dispose of the matter one way or the other.
3. Having regard to the fact set out above and the circumstances that the suit was filed in 1976 and the execution proceeding in 1982, there will be grave injustice if the proceeding is transferred at this stage to the court of the District Munsif. The Subordinate Judge having heard the matter already three times, ought to have passed an order. What remains to be done in the execution proceedings is only the construction of a wall to demarcate the division of the property, and the proceedings had to be concluded only in the court of the Subordinate Judge and it should not be transferred to the court of District Munsif. There is no question of want of jurisdiction on the part of the Subordinate Judge. The position is quite clear from the provision contained in Sections 37 and 38 of the Code of Civil Procedure. Section 37, Code of Civil Procedure defines the expression 'Court which passed a decree.' Under Clause (b), where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed was instituted, at the time of making the application for the execution of the decree, would have jurisdiction to try such suit, can also be said to be the court which passed the decree. It is not necessary to refer to Clause (a) in this case. Under Section 38, a decree may be executed either by the court which passed it or by the court to which it is sent for execution. In this case, the court which passed the decree actually is the court of the Subordinate Judge and it has not ceased to be so after Tamil Nadu Act 28 of 1995. Under 0.21, Rule 10. Code of Civil Procedure, where the holder of a decree desires to execute it, shall apply to the court which passed the decree. A similar question arose when Tamil Nadu Act 34 of 1980 was passed, enhancing the jurisdiction of the courts and containing a similar provision for transfer of suits in K. Muthaiyan Nadar v. R. Vijayarani (C.R.P. No. 4561 of 1987-Order dt. 26.4.1988/1988 T.L.N.J. 149) I dealt with the matter at great length. After referring to the provisions of Section 4(2) of the said Act, which were similar to the provisions of Section 4(2) of the present Act 28 of 1995, I said.
5. I have already extracted the terms of Section 4(2) of Tamil Nadu Act 34 of 1980. That section cannot apply to the present case as on the date of commencement of the Act, viz., 7.3.1981, there was no suit or proceeding in the Sub Court or District Court. While Section 4(1) of the Act deals with suits pending in the High Court, Section 4(2) deals with suit and proceedings pending in the Sub Court and District Court. On the relevant date, in this case, the matter was pending in this Court in C.R.P. No. 2829 of 1979. It was the duty of the parties to have brought to the notice of this Court at the time of disposal of the revision petition the provisions of Act 34 of 1980 and prayed for a direction to send the matter to the court of the District Munsif instead of sending it back to the Sub Court. As held by Krishnan, J., in Muthumani Ammal v. Naina Mohamed Rowther 44 M. L.J. 238, the matter having been specifically remanded to the Sub Court, it is not open to the petitioner who is a party to the order of remand to contend that the Subordinate Judge had no jurisdiction.
6. There is a fallacy in the contention that the Subordinate Judge had no jurisdiction. The first part of section of the Tamil Nadu Civil Court Act is in the following terms:
The jurisdiction of a District Judge of a Subordinate Judge extends, subject to the rules contained in the Code of Civil Procedure to all original suits and proceedings of a civil nature. Thus, the Subordinate Judge as well as the District Judge have jurisdiction to try all suits whatever be the value. The only limitation is to be found in the rules of the Code of Civil Procedure. Section 15 of the Code of Civil Procedure reads thus:
Every suit shall be instituted in the court of the lowest grade competent to try it. Though the language of the section is mandatory, it has been held that the section prescribes only a rule of procedure and not of jurisdiction; a direction to the suitor and not a rule binding the court. Vide (1) Midmi Lal v. Haznar Hussan I.L.R. 7 All. 230; (2) Matra Mondal v. Hari Mohan Mullick I.L.R. 7 Cal. 155; (3) Krishnaswami v. Kanakasabai I.L.R. 14 Mad. 183; (4) Augustine v. Jedly Cott I.L.R. 15 Mad. 241
4. In Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh : (1994)1SCC131 the Supreme Court held that the value of the property sold at the execution was not determinative of the pecuniary jurisdiction of the Court. The court considered the provisions of Order 21, Rule 10, Code of Civil Procedure and also considered the expression 'the court which passed a decree'. The court held that where the decree in execution is within the jurisdiction of the court which passed the decree though value of the property sold is more than its jurisdiction, execution court has jurisdiction. In this case, the court which passed the decree is the Sub Court. It has jurisdiction, as pointed out earlier, to deal with suits of value below Rs. 30,000 also. It is not as if the amending Act has taken away the jurisdiction of Sub Court to deal with such suits. It is only by virtue of Section 15 of the Code of Civil Procedure, suits are to be filed in the lowest court, viz., in the court of the District Munsif. It is only a rule of procedure and convenience and not a rule of jurisdiction. Hence, the Court of Subordinate Judge which passed the decree has jurisdiction to continue the execution and complete the same.
5. There is no merit, therefore, in the contention of the defendants that the execution proceedings must be transferred to the Court of the District Munsif for continuation. Tamil Nadu Act 28 of 1995 does not deprive the Sub Court of its jurisdiction to deal with the execution matter. Hence, the III Additional Subordinate Judge, Madurai is directed to continue the execution proceedings and dispose of the same in accordance with law on or before 16.8.1996 and report to this Court. As I have now decided that he has jurisdiction to continue the execution proceeding, there is no need for him to consider that question once again. He shall proceed with the execution proceedings on the footing that he has jurisdiction to do so.
6. The revision petition is allowed on the above terms. There will be no order as to costs.