Calcutta High Court
Birla Corporation Ltd. vs Prasad Trading Company And Anr. on 29 August, 2006
Equivalent citations: AIR2007CAL38, AIR 2007 CALCUTTA 38, 2007 (1) AKAR (NOC) 78 (CAL), 2007 AIHC NOC 179, (2007) 1 CAL HN 688, (2007) 3 ICC 334
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
ORDER Kalyan Jyoti Sengupta, J.
1. In all these bunch of execution applications the point has been raised for consideration, as to whether in view of amendment of Section 39 with insertion of Sub-section (4) of Civil Procedure Code this Court being executing Court has any authority to execute the decree passed by it against any person residing or touching property situated outside the local limit of its jurisdiction or not. One of the Learned single Judge of this Court in case of Smt. Uma Kanoria v. Pradip Kumar Daga while interpreting the amended provision of the section has held that in view of insertion of aforesaid Sub-section (4) the Court which has passed the decree, is not authorized to execute the decree against the person or property residing and situate outside the local limit of its jurisdiction. The Learned Counsels on behalf of the respective persons in all these matters have advanced argument in both ways "which are summarized hereunder.
2. Mr. A.K. Mitra, Senior Advocate, while leading the argument in support of the point that this Court has not lost its jurisdiction, submits that the power of the executing Court flows from Section 38 of the Code. It will appear from the reading of the language of the said section that the decree may be executed by the Court which has passed it or by the Court to which it is sent for execution. Therefore, it is clear that the Court, which has passed a decree, does not lose jurisdiction to execute it irrespective of location of the property or residence of the person against whom decree is sought to be executed. According to him, it is the convenience of the executing Court either to execute it by itself or to send it to some other Court. The intention of the legislature is that the decree by the Civil Court should not be allowed to be frustrated and the Court must see by any lawful means the fruit thereof is enjoyed. The legislature mandates, if one reads the language of the said Section 39 Sub-section (1), clearly that it is the discretion of the Court which has passed the decree, and that too only on the application of the decree holder to send it for execution to another Court of competent jurisdiction under the circumstances as "mentioned in Clauses (a), (b), (c) and (d) of the said sub-section. Therefore, he contends that newly inserted Sub-section (4) in Section 39 has to be read conjointly with rest portion of the Sections 39 and 38. By this provision original power of execution of the Court, which has passed decree, amongst other appointing Receivers, cannot be taken away. His further contention is that the Learned Single Judge rendered the decision noted above, without having assistance of the previous catena of decisions rendered by this Court on this point whereby and whereunder it has been uniformly held that this Court while executing a decree without sending the same for execution to another Court had executed it by appointing a Receiver over property situate outside jurisdiction or requiring the person residing outside Jurisdiction of this Court to be present before the Court for execution. The following are the large number of decisions:
ILR 66 Cal 513 ILR 14 Cal 661 ILR 15 Cal 667 ILR 19 Cal 13
3. He urges thereafter that the practice and procedure which is followed from the inception of this Court has got the effect of Rule framed by this Court, which in its turn has been held to be the effect of supreme legislation. The provisions of the Original Side Rules framed by this Court override the provisions of Civil Procedure Code and this principle of law has been decided long time back by Full Bench decision of this Court in case of Manickchand Durgaprasad v. Pratabmull Rameswar . The aforesaid Full Bench decision of this Court held in paragraph 13 as follows:
The restriction upon the power of the Court as contained in the proviso to Clause 37 of the Letters Patent is that the rules framed under that clause should, 'as far as possible' be in conformity with the provisions of the Code of Civil Procedure. This restriction as the phrase 'as far as possible' indicates is merely directory. The provisions of the Code of Civil Procedure are intended for the purpose of guidance of this Court in framing rules under Clause 37 of the Letters Patent. Consequently, if any rule framed by the High Court under Clause 37 be inconsistent with or confers any additional power besides what is granted by the Code of Civil procedure, the rule framed under Clause 37 will prevail over the corresponding provisions of the Code of Civil Procedure.
4. This view of the Full Bench has been approved by the Supreme Court reported in case of Iridium India Telecom Limited v. Motorola Inc. . Therefore, according to him, the provision of Sub-section (4) of Section 39 of the said Code is not applicable in case of chartered High Court particularly to this Court as it is inconsistent with the provision of the Rules of this Court.
5. He next contends that in any view of the matter in the recent decision of the Supreme Court rendered in case of Salem Advocate Bar Association, Tamil Nadu v. Union of India the amended provision of Section 39 came to be examined by the Hon'ble Apex Court. In paragraph 25 it is held amongst others that the effect of insertion of Sub-section (4) of Section 39 does not dilute the other provisions giving such power on compliance of conditions stipulated in those provisions.
6. So he calls upon this Court to hold that earlier decision on this point in Uma Kanoria's case is no longer a law to hold the field and this decision needs to be reconsidered by accepting the latest Supreme Court pronouncement on this subject and also other previous Judgments of this Court.
7. The Learned Counsel for the respondents submits that in view of amendment by insertion of Sub-section (4) of Section 39 the Court which passes decree has lost its authority to execute the same against any person residing or property situates, outside the local limits of its jurisdiction. The language mentioned therein is very clear. The word "shall" make the provision mandatory one as regard authority of the Court is conerned. The intention of the legislature is very clear that the judgment debtor who resides or whose property situates outside the local limits of the trial Court's jurisdiction, shall not be harassed as equitable measure. The decision rendered in Uma Kanoria's case by this Court is correct proposition of law upon interpretation of the said amended provisions.
8. Under these circumstances, the execution cannot be levied against the judgment debtor who resides outside the jurisdiction of the Court which passed the decree and in connection with the property which situates outside the territorial jurisdiction of this Hon'ble Court.
9. I have carefully gone through the respective contentions of the Learned Counsel and the decisions cited by them on this point. The question which has fallen for consideration is (1) what is the legal implication of amendment of Sub-section (4) of Section 39 of the Civil Procedure Code as regard power and authority of the trial Court of the Chartered High Court in its original side is concerned and (2) whether the decision rendered In Uma Kanoria's case is a correct proposition of law having regard to the provision of Sub-section (4) of Section 39 vis-a-vis the power of the Chartered High Court in its Original Side?
10. Before I discuss and address the aforesaid points line power of the Court that has passed decree, to execute the same conferred by the Court is to be examined. In an old decision rendered by the Full Bench of this Court reported in ILR 6 Calcutta 513 Latchman Pundeh v. Maddan Mohun Shye and Ors. the corresponding provision of Sections 38 & 39 of the present Civil Procedure Code (Sections 223 and 649 of Civil Procedure Code 1877 as amended in 1879) were interpreted and it was held that the Court does not cease to be 'the Court which passed the decree' merely by reason that the headquarters of such Court being removed to another place or merely because the local limits of the jurisdiction of such Court are altered. In this case in fact when execution was levied the location of the Court which passed the decree was shifted to another place because of restructuring of the District, consequently property which was sought to be executed fell outside the territorial limit of the Court which had passed the decree. In this context it was held that the Court which passed a decree had authority to execute the same and at the same time application for execution could have been transferred to the Court within whose jurisdiction the property had fallen by reason of restructuring of territory. But the point that was raised and resolved, is that the Court which passed the decree, because of the provision of transfer of execution case, did not lose the power to execute.
11. In the case of Maseyk v. Steel and Co. and Anr. reported in ILR 14 Cal 661 the Full Bench of this Court while examining the provision empowering the Court to execute a decree held that it is the discretion of the Court either to execute the decree by itself or to send it to another Court within whose jurisdiction the property situates.
12. In case of Kartick Nath Pandey and Ors. v. Tiluk Dhari Lall and Anr. reported In ILR 15 Cal 667 the Division Bench of this Court held that Section 223(c) of the old Code of Civil Procedure does not curtail the power of a Court to execute its own decree, but gives it discretion either to execute the decree itself or on the application of the decree holder, to send it to another Court for execution, and thereby extends rather than limits the Court's power.
13. In case of Moll Mohan Roy and Ors. v. Doybaki Nundun Sen and Ors. reported in ILR 19 Cal 13 the Division Bench of this Court held in the similar line while examining the provision of Section 223 Clause (c) of the old Civil Procedure Code that the same leave to the discretion of the Court to send the decree for execution to the Court within whose jurisdiction the property situates.
14. In the case of (Raja) Promothanath Malia v. H.V. Low and Co. the Division Bench of this Court took the same view while examining the scope of the Sections 38, 39, 51(b) and 51(d) of the present Code held amongst others that Calcutta High Court on its Original Side has the power to appoint a Receiver as one of the modes of execution in respect of the property situated outside its ordinary original civil jurisdiction. But it should be careful in the exercise of this power and should exercise sparingly only on proper case being made out that the appointment is necessary or advantageous. It cannot make an appointment on the sole ground that it is the only form of execution open to it which can be availed of to enforce its decree. Indeed Their Lordships actually held that as a statement of law appointment of Receiver in execution proceedings touching and/or concerning the property situates outside the territorial limit of the Original Side of this Court is an equitable method and it should not ordinarily be followed when ordinary execution is possible. The Hon'ble Mr. Justice Ghose in his separate judgment had addressed that the power of the Original Side of this Court originates from the power given to the erstwhile Supreme Court being the predecessor of this Court which in its turn was treated at par with the Chancery Division.
15. In the case of Messrs. H.N. Dutta and Co. v. Smt. Tarubala Dassi and Ors. examined the scope of the provision of Section 39 of the present Code. Their Lordships held at page 572 amongst others as follows:
It may well be however that even if there had been as valid assignment of a decree, it was still quite open to the learned Subordinate Judge to exercise discretion whether or not the conditions set forth in Section 39 is fulfilled. I think it was quite open to him to say that they did not, because the word used in the Section is the word 'may' in connection with the word 'send' and not the word 'must' or 'shall". In other words, the provisions of Section 39 are permissive and not mandatory.
16. Thereafter in Benaras Ice Factory's case The Hon'ble Mr. Justice A.N. Ray (as His Lordship then was) while discussing and relying on the decisions was pleased to observe that the Court that has passed decree had jurisdiction to execute decree. The giving of a charge by the Court upon the land outside the territorial jurisdiction of the Court was not unlawful. The Court had jurisdiction, in execution of the decree, to appoint a Receiver of the properties at Benaras. Article 21 of the Constitution under which decrees and orders of Courts of one State are capable of being executed in another State was a complete answer to the question of effectiveness of the decree passed.
17. The Division Bench of this Court in case of Hindustan Gas & Industrial Ltd. v. Adhish Chandra Sinha reported in 1994 (2) CLJ 246 had the occasion to discuss the power of this Court in its extra ordinary original civil jurisdiction to execute a decree of eviction of a property situates outside the territorial limit. The Division Bench accepted that as an equitable method of execution the Court has power to appoint a Receiver to recover the property situates outside the territorial limit of this Court.
18. It is, thus, clear from time immemorial this High Court being a Chartered High Court in its ordinary original civil jurisdiction has evolved its own procedure and practice to appoint a Receiver in an execution application in connection with the property situated outside the jurisdiction. The Rule making power of this Court is derived not only from the provision of Code of Civil Procedure but also under the provision of Clause 37 of the Letters Patent.
19. In a fairly recent Supreme Court decision rendered in case of Iridium India Telecom Ltd. v. Motorola Inc. the effect of the Rules framed under Letters patent by this Court was examined. Their Lordships examined in the context of the amended provision of Order 8 Rule 1 of the Code of Civil Procedure regarding mandatory filing of the written statement within 90 days. In paragraph 44 of the said judgment Their Lordships in the Supreme Court while approving the Full Bench decision of this Court rendered in case of Manickchand Durgaprasad v. Pratabmull Rameswar held that Rules framed under Clause 37 of the Letters Patent override the provisions of the Code of Civil Procedure.
20. Lastly in the case of Salem Advocate Bar Association, Tamil Nadu it appears that in paragraph 25 the Supreme Court examined the scope of that amended provision of Section 39 and held as follows:
Section 39 does not authorize the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance of conditions stipulated in those provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which provide differently, would not be effected by Section 39(4) of the Code.
21. The status and position of all the Chartered High Courts (this Court) are almost identically common. The Court in detail examined historical background in case of Sohan Lal Baid v. The State of West Bengal and Ors. . The Rule making power of this Court has originated from Clause 37 of the Letters Patent read with Section 108 of the Government of India Act, 1915. This power of this Court given by the said two Acts are unique and it stands on a different footing from other High Courts.
22. After analyzing and reading of all these judgments now I have to examine how far Sub-section (4) of Section 39 takes away the power of this Court in the matter of execution of a property situates outside the territorial limit of this Court.
23. In view of authoritative pronouncement of the Supreme Court in Salem Advocate/Bar Association case I think there cannot be any doubt that Sub-section (4) of Section 39 cannot take away the power of this Court elsewhere, provided in the Code itself in the Order XXI Rule 3 or Order XXI Rule 48 of the Code of Civil Procedure. I, therefore, set out the said provision of Order XXI Rule 3:
3. Lands situate in more than one jurisdiction. - Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate or tenure.
24. In the Original Side Rules framed under Clause 37 of the Letters Patent read with Section 108 of the Government of India Act, 1935 and Article 225 of Constitution of India has got the effect of Supreme Court legislation and it being a special law obviously override the general law of procedure viz. Civil Procedure Code. The practice and procedure followed by this Court for a long time also partakes the character of the law by virtue of Rule 3 Chapter XL of the Original Side Rules. The aforesaid number of decisions have clearly recognized and accepted long standing procedure & practice and also proposition of law to appoint Receiver over a property situates outside the territorial jurisdiction as an equitable mode of execution. This practice & procedure adopted by the said Rule cannot be taken away and/or curtailed by Sub-section (4) of the Section 39 of the said Act by the Parliament and can only be done by the Full Court of this Court. Moreover, Sub-section (4) has to be read in the context of the parent provision of Section 39. Section 39 of the Code of Civil Procedure has already been explained by a Division Bench judgment of this Court as quoted above as being power of discretion. Power of execution of a decree is primarily derived from the provision of Section 38. Therefore, Sections 38 and 39 have to be read conjointly and has to be given the objective meaning. The duty of the Court while interpreting any portion of the statute or any Section of the statute, would be to give harmonious meaning so that the primary object of the Section is not rendered nugatory by amended provision. According to me, the word 'shall' mentioned in Sub-section (4) of Section 39 is not intended to mean as being mandatory for it cannot be read inconsistently with the Sub-section (1) of Section 39. It is the discretion of the Court either to execute by itself or to send it. But the legislature has advisedly provided in case of the situation as mentioned under Sub-section (4) that the Court which has passed the decree will not ordinarily execute by itself if it is found that the execution is possible legally and conveniently on the decree being sent to the appropriate Court within whose jurisdiction the property situates and/or the person resides. This does not mean that the Court's discretionary power in a fit and proper case is curtailed to execute by itself even in a case as mentioned in Sub-section (4) of Section 39 of the said Code. If this provision is read as being mandatory then unscrupulous judgment debtor who is sought to be executed will go on changing his place of residence locating within the jurisdiction of transferee Court and in that case each occasion of change of residence will give rise to fresh order of transfer by the Court successively. It is an inconceivable idea that the process of execution will run after judgment debtor all the time.
25. In my considered view the Court will not ordinarily execute it rather send it for execution to the Court within whose jurisdiction property situates, or the judgment debtor or the person against whom execution would be levied, resides, but in exceptional case the Court which passed decree can execute, provided such case has to be made out in the application. In that situation the Court which has passed decree, itself will execute it by appointing Receiver or by any other method as the situation will permit.
26. In view of the earlier decision rendered by me in Uma Kanoria's case it cannot, be termed to be an absolute proposition of law in view of the Supreme Court pronouncement and in view of discussion as above considering large number of judgments recognizing uniform practice and procedure.
27. Now, I hold that all these applications are entertainable but it has to be examined on each and every individual case whether execution can be levied under the equitable mode or not.