Calcutta High Court
Smt. Uma Kanoria vs Pradip Kumar Daga on 1 October, 2002
Equivalent citations: AIR2003CAL162, AIR 2003 CALCUTTA 162
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
ORDER Kalyan Jyoti Sengupta, J.
1. In this execution application a point has been taken by the judgment debtors on the question of Jurisdiction of this Court. The mode of assistance of the claim in this application is for oral examination of the judgment debtors namely Pradip Kumar Daga, Smt. Asha Daga, Yashwant Kumar Daga and Smt. Nandini Daga under Order XXI, Rule 41 of the Code of Civil Procedure and the Judgment debtors are also directed to make and file their affidavit, stating the particulars of the assets of the judgment debtors.
2. Mr. Tilak Basu, learned Counsel while opposing his application contends that admittedly the notice from this department has been Issued at the address of the judgment debtors situated at 5, Merline Park, Calcutta-700 019 outside the territorial limit of the Original Civil Jurisdiction of this Court. Therefore, his contention is that in view of provision of Section 39 of the Code of Civil Procedure as amended this Court has no power to execute this decree against the aforesaid persons who reside outside the local limits of this jurisdiction. He has drawn my attention to the recent amendment by way of insertion of Sub-section (4) of Section 39 of the Code of Civil Procedure Code. Even before amendment the judicial pronouncement of this Court was to the effect that the Court, which passed decree, could not have any jurisdiction to execute the same in case of a person against whom the decree is sought to be executed, residing voluntarily or working for gain or the property situated outside its jurisdiction and this was and still is required to be transferred under Section 39 of the said Code. His contention is that the word "may" used in Section 39 of the said Code employs and suggests having regard to the object of the aforesaid section, is mandatory. In support of his submission he has relied on decisions of the Division Bench of this Court (Hari Das Basu v. National Insurance Company Ltd.) and (Benaras Ice Factory Ltd. v. Sukhlal Amarchand Vadnagra). He has also relied on decision of the Bombay High Court , (Shaba Yeshwant Naik v. Vinod Kumar Gosalia).
3. Mr. Soumen Sen appearing for the decree-holder submits that the provisions of Section 39 of the said Code is discretionary power of the Court which has passed a decree. The jurisdiction to execute a decree emanates from Section 38 of the said Code. Provisions of both the Sections are to be read conjointly. It will appear therefrom, that the power of the transfer of the Court which has passed a decree is absolutely optional. Ordinarily the Court should transfer the decree in the event the conditions mentioned in Section 39 having been fulfilled. The word "may" used in Section 39 of the said Code is discretionary. In support of his submission he has relied on a decision of this Court (H.N. Dutta & Company v. Smt. Tarubala Dassi). His further contention is that the aforesaid point has been considered by the learned single Judge of this Court in an unreported in decision and held that on the facts and circumstances which are identical to this one that this Court has jurisdiction to execute the decree, even if the property situates outside the jurisdiction of this Court.
4. Having heard the respective submissions and contentions of the learned Counsels I am of the view that the point has fallen for consideration as to whether having regard to the relief claimed in the column 10 of the Tabular Statement whether this Court can proceed with the execution in this matter or not. I feel it necessary to reproduce Sections 38 and 39 of the said Code.
5. "38. Court by which decree may be executed.--A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."
"39. Transfer of decree.--(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to author of competent jurisdiction,--
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain within the local limits of the jurisdiction of such other Court, or
(b) if such person has no property within the local limits of the jurisdiction of the Court "which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property suitable outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reasons, which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction (3) For the purposes of this section, a. Court shall be deemed to be a Court of competent jurisdiction if at the time of making the application for the transfer of decree, to it, such Court would have jurisdiction to try the suit in which such decree was passed.
(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any per son or property outside the local limits of its jurisdiction."
6. Upon careful scrutiny of both the two Sections it appears to me that the jurisdiction of a Court to execute a decree emanates from Section 38. Primarily, Section 38 contemplates Courts which are authorised to execute the decree and one, which has passed decree or the Court to which it is sent for execution. Section 39 provides for transfer of a decree by the Court which has passed to the Court within whose jurisdiction and having competency to do so the person against whom, the decree is passed quietly and voluntarily resides or carries on business or person works for gain within the local limits of the jurisdiction of such other Court; or his property within the local limits of the jurisdiction of such transferee Court; or the property sale of which or delivery of sale or delivery of which has been asked for, situates within the jurisdiction of the transferee Court or for any reason the Court which has passed decree think fit to transfer the decree for any reason. Sub-section (2) of Section 39 enables the Court to transfer the decree on its own motion for execution to any subordinate Court of any competent jurisdiction.
7. Before insertion of Sub-section (4) the Judicial pronouncement of this Court in the decision of the case of Haridas Basu v. National Insurance Company Ltd. as cited by Mr. Bose clearly held at page 214 (column I) as follows :
"The executing Court, like the Court entertaining a suit (except in case of breach of contract) must have territorial jurisdiction over the subject matter against which execution is sought. Where it has no such jurisdiction the provisions of Section 39 Civil P.C. must apply, that is to say, the executing Court should send this application for execution to any other Court which has such territorial jurisdiction. The word "may" used in Section 39 does mean that it is in the discretion of the Court which passed the decree either to execute the decree itself or to send this application for execution to another Court where the property against which execution is sought is situated outside the jurisdiction of the Court which passed the decree. The discretion given there indicates that the Court should send the application for execution to another Court where it thinks that the decree is executable in the way prayed for.
If the movable property such as money against which execution is asked for and not within the territorial limits of the executing Court, the only other way in which that Court may have jurisdiction to execute the decree is when the person against whom execution is sought is or resides within the jurisdiction of that Court. Except these or one of these circumstances exist or exists the executing Court has no jurisdiction to seize property which is not within its territorial jurisdiction and where the person against who execution is sought does not reside within its territorial jurisdiction."
8. In a bench decision of the Bombay High Court as cited by Mr. Basu, , it has been observed in paragraph 12 as follows :
"Section 38 provides that a decree may be executed either by the Court, which passed it or by the Court to which it was transferred for execution. Section 39 lays down the condition under which a decree can be so sent."
In paragraph 13 it has been observed further that:
'The use of the word 'may' in the above provision only shows that a judicial discretion is given in the matter to the Court to prevent and abuse of the remedy sought to be employed either by collusion or by malice or under other considerations. The learned single Judge, therefore, in our opinion rightly held that Margao Court had no jurisdiction to attach the property in dispute being outsider it territorial jurisdiction."
9. A later Division Bench judgment of this Court as cited by Mr. Sen has observed that:
"The provisions of Section 39 are permissive and not mandatory."
10. It appears that in this Division Bench judgment the earlier Division Bench judgment was not cited, Therefore, the earlier Division Bench judgment, which is discussed on this point precisely, has to be followed in this case. Two decisions of the learned single Judge of this Court are not to be followed in view of the earlier Division Bench judgment, the recent unreported decision of the learned single Judge of this Court though held In favour of the decree holder on the facts and circumstances of that case. However, there was no discussion as to why the earlier judgment of the Division Bench of this Court has not been followed.
11. Moreover, in view of the aforesaid insertion of Sub-section (4) if has been made clear removing all doubts that the Court, which has passed a decree, is not authorised to execute the decree against any person or property outside the local limits of its jurisdiction. Therefore, the doubts, which might or could have arisen on the question of jurisdiction of an executing Court, have been removed. In harmonious reading of both the two sections now it appears to me the Court which has passed a decree cannot have any jurisdiction to proceed with the execution of a decree when circumstances and conditions mentioned in Section 39 exist.
12. The whole object of making provisions of transfer of a decree Is amongst others to see that the judgment debtor (s) is (are) not unduly harassed by bringing them from their place of residence or business to the Court situate outside of the local limit. It is also the object of the aforesaid provision that the decree can be executed conveniently when the properties both movable and immovable situate within the jurisdiction of a particular competent Court.
13. However, the applicability of the aforesaid provisions would be made when the conditions mentioned in the said Section are fulfilled.
14. Therefore, having regard to the nature of the relief claimed herein it appears to me the instant decree is sought to be, for the time being, proceeded against a person residing voluntarily outside the local limits of this Court. The word 'person' mentioned in Sub-section (4) is not only judgment debtor, but includes the third party as well.
15. Admittedly the person against whom the execution is sought to be levied resides outside the territorial limit of this Court. Therefore, I hold the objection raised by the judgment debtors sustains this application cannot be proceeded with by this Court.
16. Therefore, this application is transferred to the learned District Judge of South 24 Paraganas at Alipore, who will place it before the appropriate Court having jurisdiction to execute this decree.
17. Let this record and original decree be transmitted to the aforesaid Court immediately after these records are being sent down to the department, at the costs of the decree-holder.