Calcutta High Court (Appellete Side)
State Of West Bengal vs Mitali Goswami & Ors on 28 March, 2025
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
C.O. 2065 of 2024
With
IA NO: CAN 1 of 2024
CAN 2 of 2025
CAN 3 of 2025
State of West Bengal
VERSUS
Mitali Goswami & Ors.
For the petitioner/State Mr. Rabindra Narayan Dutta, Adv.
Mr. Hare Krishna Halder, Adv.
Mr. Dwarika Nath Mukherjee, Adv
Mr. Manas Kumar Das, Adv.
Mr. Aritra Kumar Thokdar, Adv
Mr. Probal Kumar Mukherjee, Sr. Adv,
For the opposite parties: Mr. Suhrid Sur, Adv,
Ms. Upasana Shaw, Adv.
Last Heard on: February 28, 2024
Judgment on: March 28, 2025
Biswaroop Chowdhury,J:
1. The petitioner before this Court is a judgment debtor in a Money
Execution case No. 19 of 2015, arising out of L.A. Case No. 31 of 2023
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before Learned Additional District Judge 3rd court at Purba Burdwan
and is aggrieved by the Order dated 12/04/2024 and Order dated
17/05/2024 passed by the Learned Judge in the said execution case.
2. The petitioner being aggrieved by Order dated 12/04/2024 and
17/05/2024 passed in Money Execution Case No. 19 of 2015 arising
out of L.A. Case No. 31 of 2003 by Learned Additional District Judge
3rd Court Burdwan has come up with this application under Article
227 of the Constitution of India.
3. The facts of the case in brief is that the petitioner State of West
Bengal represented by its Land Acquisition Collector undivided
Bardhaman acquired 0.041 areas of landed property for widening of
G.T. Road at Mouza - Khantpukur J.L. No- 59 Police Station Kanksa,
Khatian No. 388 Plot No-629, District Undivided Burdwan, presently
District - Paschim Bardhaman, which belonged to one Susanta
Kumar Goswami alongwith other vast landed properties of others
After compliance of all formalities as per provisions of L.A. Act of
1894, the petitioner being Land Acquisition Authority, Bardhaman
duly acquired the aforesaid landed properties and declared
award/compensation money and paid the said awarded sum to the
erstwhile land owners including Susanta Kumar Goswami the
predecessor of the opposite parties herein. Susanta Kumar Goswami
filed application under Section 18 of L.A. Act I of 1894 for
enhancement and reference. Ultimately the Land Acquisition
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Authority referred the matter before the Learned District Judge
undivided Bardhaman. Thereafter the said application under Section
18 of L.A. Act of 1894 was transferred to the Additional District Judge
3rd Court Bardhaman who was pleased to pass judgment and decree
by observing and directing as follows:
'After perusal of the above mentioned deed, I considered the Ext 1 is not
relevant example in the instant case as the sale deed is relating to shop room,
though the petitioner case is different. He fails to prove that there was any
shop room in the acquired land though it was registered near to the date of
acquisition However on the other hand upon perusal of Purcha it is appears
that the acquired land was Bastu class of land and situated near the G.T. Road
and Muchipara Market. Therefore this Court determined the price of the
acquired land of the petitioner to the tune of Rs. 26,76,240/- per acre ie. as per
the L.A. Collector own assessment for the Bastu class of land and situated near
the G.T. Road and Muchipara Market. Therefore this Court determined the
price of the acquired land of the petitioner to the tune of Rs. 26,76,240/- per
acre ie. as per the L.A. Collector own assessment for the Bastu class of land.
Rate fixed by this Court and L.A. Collector is just and proper in the facts and
circumstances of the present case.
In the result this reference petition succeds and the petitioner is entitled to get
compensation in his acquired land at the rate of of Rs. 26,76,240/- per acre.
The award passed by the L.A. collector Burdwan is modified accordingly.
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Hence it is
Ordered.
That the L.A. Case No. 31/2003 be and same is allowed on contest but
without any order as to cost.
The market price of the acquired Bastu Class of land described in the
schedule of the Reference petition is fixed at Rs. 26,76,240/- per acre.
The petitioner is entitled to get enhanced compensation at the above rate.
The petitioner is also entitled to get solatum @ 30% on the enhanced market
value.
The petitioner is also entitled to get interest @ 12 % per annum on the
market value from the date of notification published on 11.07.1996 till the date
of award.
The petitioner is further entitled to get interest @ 9% per annum on the
amount in excess of the amount awarded by the L.A. Collector for one year
from the date of possession and at the rate of 15% per annum in excess of the
amount and after expiry of such period of one year and till full and final
payment.
The L.A. collector Burdwan is hereby directed to make payment of such
award with 90 days from the date of receipt thereof.
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Send a copy of this judgment to the L.A. Collector Bwrdwan for
information and necessary action.'
4. Judgment dated 20-12-2013 passed by Learned Additional District
Judge 3rd Court Burdwan was not complied thus an execution case
was instituted by the legal representatives of the Award
holder/Decreeholder who are the opposite parties herein. The said
case was registered as Money Execution No. 19/2015.
5. During pendency of Money Execution Case District Bardhaman was
divided into two parts that is Purba Bardhaman and Paschim
Bardhaman in the year 2018. The original Decree Holder died on
13/11/2020, leaving behind the opposite parties as legal heirs and
representatives. The opposite parties got them substituted in the
Money Execution Case No. 19 of 2015 arising out of L.A. Case No. 31
of 2003.
6. By a notice dated 29th June 2021, the District Judge Purba Burdwan
was intimated by the Registrar Judicial Service High Court Calcutta to
take necessary steps for transfer of Land Acquisition Cases from the
District Purba Burdwan to Paschim Bardhaman.
7. An objection was taken by the petitioner that the Learned Executing
Court ceased to have jurisdiction to execute the decree in view of
bifurcation of the District Burdwan, and in view of the letter issued by
the Registrar Judicial Service to the District Judge - Burdwan.
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8. The Learned Executing Court upon hearing the Learned Advocate for
the Decree-holder and the Learned Government pleader representing
the petitioner was pleased to pass the following order on 12/04/2024.
'That the application for execution under Order 21 Rule 11 of CPC and
other petitions filed by the decree holder are allowed on contest. The previous
order no. 51 dated 22-12-2023 and 52 dated 30-01-2024, directing the decree
holder to file an amended execution application are recalled. The objections
filed by the State of West Bengal are dismissed on contest.
The ADM (LA) Purba Bardhaman is directed to pay Rs 1,99,70,790/- in
total to the decree holder by the next date and is directed to send compliance
report to this Court at the earliest in default of payment of which the D.M.
Bunglow would be attached. No further objection from the side of state of West
Bengal with intent to delay the execution proceedings would be entertained by
this Court.
Fix 17-05-2024 for report from ADM (LA) Purba Bardhaman and final
Order.
Let a copy of this order be sent to the ADM (LA) Purba Bardhaman for
compliance and report.'
9. As the Order dated 14/04/2024 passed by the Learned Judge was not
complied and a petition was filed by the Judgment Debtor/Petitioner
praying for time to file Civil revision before the Court the Learned
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Executing Court was pleased to dismiss the prayer for time and direct
as follows by Order dated 17-05-2024.
That the DM Bunglow situated at Mouza-Sadhanpur JI No-69 Khatian
No. C5 & 34 Plot No-35 nature-Bastu containing vacant land garden and
building known as 'DM. Bunglow' of area of 3.04 areas be attached under
Court's Order.
The Nazir is directed to communicate the attachment order to the ADM
(LA) Purba Bardhaman and also to D.M. Purba Bardhaman. He is also directed
to give me a report regarding the price of the property as directed above so that
this Court can sell the Property so attached by public auction as described in
Civil Procedure Code. The Nazir is directed to report whether the sole value so
received would satisfy directed amount and whether he or Court bailiff acting
under him would require police help for execution of the decree; if so the
number of police personal so required for execution of the decree so that the
Decree Holder may deposit the amount required for deployment of the police
personnel.
Fix 19-07-2024 for report from Nazir District Court Purba Bardhaman
and further order.'
10. The petitioner being aggrieved by the Learned Executing Court has
come up with this application under Article 227 of the Constitution of
India.
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11. It is the contention of the petitioner that the Learned Trial Judge
having its lack of inherent jurisdiction ignoring the administrative
decisions of the Hon'ble High Court, Calcutta, as communicated by
the Learned Registrar (Judicial Service), High Court, Appellate Side,
Calcutta, passed the impugned orders which are ex-facie bad in law,
illegal arbitrary, perverse capricious in nature and in violation to the
principles of natural justice. It is further contended that it is
impossible for the ADM (LA) Purba Bardhaman to carry out the order
and directions as passed by the said Learned Trial Judge in Money
Execution Case No. 19 of 2015 which ought to have been transferred
by the said Learned District Judge Paschim Bardhaman for execution
of the decretal amount from the L.A. Collector, Paschim
Bardhaman. It is also contended that if the impugned orders be
allowed to stand there will be an occasion of failure of consequential
natural justice.
12. The petitioner also filed a supplementary affidavit to the main
application.
13. It is the contention of the petitioner that pursuant to the Order
dated 26-06-2024 passed by this Court upon the principal Secretary
Land and Land Reforms Department, of West Bengal to take steps for
payment of the decretal amount, and to submit a report, the
Additional Chief Secretary and Land Reforms Commissioner
Government of West Bengal on 04-07-2024 vide Memo No.
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563/LA/N/9R-51/2014(Pt) informed District Magistrate and Collector
Paschim Bardhaman for taking steps so that the decretal amount as
passed by Learned Land Acquisition Judge, Bardhaman dated 20-12-
2023 may be disbursed at an early date to carry out the order of this
Court.
14. It is further contended that the Land Acquisition Collector Paschim
Bardhaman pursuant to the direction of Additional Chief Secretary
and Land Reforms Commissioner Government of West Bengal after
perusing the relevant documents and after thorough examination and
going through the Judgment and Decree dated 20.12.2013 passed by
Learned Land Acquisition Judge Bardhaman in L.A. Case No. 31 of
2003 made proper calculation of the decretal amount in respect of the
land in question being R.S. plot No. 629, Mouza-Khantpukur JL. No-
59, Police Station - Kanksa, District - Paschim Bardhaman
measuring 0.041 acre or 4.1 decimal more or less and thus assess a
sum of Rs. 3,81,465/- only in respect of the land under acquisition as
referred to above in the name of Susanta Kumar Goswami, deceased
and present claimants/opposite parties herein who were substituted
in Money Execution Case No. 19 of 2015, now pending before the
Learned Land Acquisition Judge at Purba Bardhaman have received
the compensation amount. It is also contended that the enhanced
awarded sum as per decree in LA Case No. 31 of 2003 have already
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been credited to the savings Bank Account of the heirs of Late
Susanta Kumar Goswami.
15. It is contended that the enhanced amount is already paid and the
opposite parties herein in filing the aforesaid Money Execution Case
Committed Serious acts of fraud in making their alleged claim of the
Decretal amount of Rs. 54,86,709/- upto 01.04.2015 plus further
interest @ 15 % per annum showing .41 acre or 41 decimal of land
knowing full well that in the judgment and decree dated 20.12.2013
and also in passing award in respect of R.S. plot No. 629 and all other
notification right from Section 4 of LA Act-I of 1894, the quantum of
land as acquired was only 0.041 acre or 4.1 decimal and on the basis
of their false statements Learned Trial Judge/Executing Court passed
the impugned orders. It is also contended that the Execution case be
transferred to the Learned Land Acquisition Judge at Paschim
Bardhaman. The opposite parties submitted Affidavit in opposition to
the Revisional Application. It is contended that on plain reading of the
said application the deponent was shocked to know about a change in
the quantum of land as .041 acres instead of .41 acres. The deponent
was surprised and unable to understand the calculations which were
made by the Judgment Debtor beyond the decree as mentioned above.
It is further contended that an enquiry of the Trial Court Case record
in the reference Land acquisition case, it was known about an order
number 98_dated 14.07.2017, that is after almost about 3 years from
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filing the Money Execution case being number 19, of 2015 wherein it
is written that the Judgment Debtors have preferred an application
under Section 151,152, and 153 of Civil Procedure Code, 1908 for
rectification of the Judgment, Decree dated December 20, 2013 which
was the Decree Holders. Without any application an order was passed
being order number 98 dated 14.07.2017 to correct tha area of the
Plot mentioned in the Judgment to .041 acres instead of .41 acres. It
was further ascertained from the L.A. case records being from 16 that
the area mentioned is .41 acres and not .041 acres. It is further
contended that an January 21,2025. The Decree-holders received a
sum of Rs. 3,81,465/- in total which is a meagre amount and in
violation of the Judgment and Decree.
16. It is also contended that even if it is considered that the area of the
Plot being acquired to be .041 acres instead of .41 acres the total
amount in accordance with the decree dated 20 December 2013, and
interest calculated to be simple interest comes to Rs. 14,26,054.57
that is more than 14 lakhs the calculations are as follows:
Calculation Sheet as per Decree dated December 20, 2013
SL.No Particulars as per Decree Amount
1. Market Price of the land 26,76,240/- per Acre
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2. Market Price for 0.041 acre 1,09,725.84/-
3. Solatium @ 30% on the enhanced market 32,917.75/-
value
4. 12% per annum additional compensation 1,43,094.52/-
from 15.01.1997 till date of award i.e.
28.07.1999 on 1,09,725.84/- (925 DAYS)
TOTAL 2,85,738.11/-
Less Collectors awarded amount 87,412/-
Amount in excess of the amount awarded 1,98,326.11/-
by L.A. Collector for 1 year from date of
possession
5. 9% interest per annum on the amount in 2,16,175.46
excess of the amount awarded by L.A.
Collector for 1 year from date of possession
i.e. from 29.07.1999 to 28.07.2000 on
1,98,326.11/-
6. 15% interest per annum on the amount in 10,11,553 (S.I)
excess of the amount awarded by L.A.
Collector from expiry of such period of one
29.07.2000 till date (as on 31.01.2025 i.e
8953 days) on 2,16,175.46
7. Total as of date as per decree 14,26,054.57 (SI)
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17. In affidavit in reply the Additional Land Acquisition Officer
contended that due to bifurcation of undivided Burdwan in two
separate districts namely Purba Bardhaman and Paschim Bardhaman
the land in question under reference under Section 18 of the Land
Acquisitiohn Act being L.A. Case No. 31 of 2003 was supposed to be
transferred to the Land Acquisition Judge, Paschim Bardhaman from
the Court of the Learned Additional District Judge, 3rd Court, Purba
Bardhaman (Money Execution Case No. 19 opf 2015 arising out of
L.A. Case No. 31 of 2003) as the entire files relating to the land in
question as involved situated within the District of Paschim
Bardhaman. The Money Execution Case is pending before the Learned
Additional District Judge 3rd Court, Purba Bardhaman and L.A.
Collector, Purba Bardhaman has been added as judgment debtor
through the L.A. Collector, Purba Bardhaman, but it is not the
authority to disburse and/or to pay the enhanced awarded sum as
per order and judgment passed by the Learned Additional District
Judge 3rd Court, undivided Bardhaman in L.A. Case No. 31 of 2003
presently Money Execution Case No. 19 of 2015 which is under
challenge in the Revisional Application. The deponent has contended
that the calculation as made in paragraph 15, of the Affidavit in
opposition is denied. It is contended that the calculation made by the
appropriate authority of L.A. Collector Paschim Bardhyaman and
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vetted by the Additional Chief Secretary and Land Commissioner,
Government of West Bengal is correct.
18. Heard Learned Advocate for the petitioner and Learned Advocate
for the opposite parties. Perused the petition filed and materials on
record.
19. Learned Advocate for the petitioner submits that the Reference
Application under Section 18 of the Land Acquisition Act of 1894 was
finally decided by the Learned Land Acquisition Judge undivided
Burdwan and passed Judgment and enhanced the land in question
under the said Land Acquisition case Rs. 26,76,240/- per acre with
solatium @ 30% an the enhanced market value and referring claimant
was entitled to get interest 12% per annum on the market value from
the date of notification published on 11-07-1996 till the date of
award. In the said judgment the Land Acquisition Judge was further
pleased to hold that the referring claimant is entitled to get interest @
9% per annum on the account in excess of amount awarded by L.A.
Collector for one year from the date of possession and @ 15% per
annum in excess of the amount and after such period of one year and
till full and final payment. Learned Advocate further submits that in
the internal page 2 of the said judgment the area of land as acquired
in plot No. 629 due to the omission on the part of the Court was typed
as 0.41 acres instead of .041 acre. Subsequently on 14-07-2017 as
per prayer of the Present petitioner the said error and/or omission in
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respect of the area of land under acquisition were corrected. On
Money Execution case No. 19 of 2015 being filed, Learned Additional
District Judge 3rd Court Purba Bardhaman, calculated the decretal
amount of Rs. 54,86,709/- and directed ADM(LA) to pay a sum of Rs.
1,99, 70,790/- by Order dated 12/04/2024. Learned Advocate
submits that the order dated 12/04/2024 was passed on the
representation which was fraudulent. Subsequently by order dated
17-05-2024 Learned Executing Court was pleased to direct
attachment of Bungalow of D.M. Purba Bardhaman. Learned Advocate
further submits that pursuant to the order of this Court Additional
Chief Secretary Government of West Bengal Department of Land and
Land Reforms by letter intimated the District Magistrate and Collector
Paschim Burdhaman for taking steps regarding payment of Decretal
amount to the opposite parties. Accordingly the amount as calculated
Rs. 3,81,465/- is paid to the opposite parties.
20. Learned Advocate also submits that pursuant to the bifurcation of
Bardhaman District the Additional District Judge 3rd Court Purba
Bardhaman lost its territorial jurisdiction as per provision of Section
39(1) of the Code of Civil Procedure, as the property and person
against whom execution is pending are lying outside the territorial
jurisdiction of Purba Bardhaman. Learned Advocate also submits that
the impugned order dated 12/04/2024 and 17/05/2024 cannot be
sustained and liable to be set aside.
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21. Learned Advocate relies upon the following judicial decisions:-
New Okhla Industries Development Authorities VS Ravindra Kumar
Singhvi.
Reported in 2023(1) ICC(SC). 134.
Shri K. Jayaram and ors VS Bangalore Development Authority and
ors.
Reported in 2022(1) ICC.(SC).642.
Yashoda alies Sodhan VS Sukhwinder Singh and ors.
Reported in 2023(1) ICC(SC).385.
N.Khosla VS Rajlokshmi.
Reported in 2006(2) ICC(SC) 739.
Union of India VS Monoranjan Mondal.
Reported in 2006(1) ICC (Cal)168.
K. Rama Rao and ors. VS MA Bari and ors
Reported in 2008(1)ICC AP-291.
Shyamal Kumar Banerjee VS Sunil Kumar Banerjee and ors.
Reported in 2005(1) ICC (Cal)-230.
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DVM Construction and ors VS Sri Infrastructure Finance LTD
Reported in AIR-2009 Cal 227.
Shriram Chits (Bangalore)Ltd. VS. Sri Panchakshari and Anr.
Reported in (2006) ICR (Kar) 498
The following decisions were cited with regard to jurisdiction.
Smt Uma Kanoria VS Pradeep Kumar Daga.
Reported in 2003 Cal-162.
Salem Advocates Bar Association Tamil Nadu VS Union of India.
Reported in AIR-2005 S.L 3353.
M/S. GR. Industries VS Bhanu Iron and Steel Company Ltd and ors.
APO 2218 of 2018.
M/S. Suto Trade Finance Corporation VS Raj Kishore Saganaria and
Anr.
Reported in 2004(3) ICC(Cal) 12.
Haridas Basu VS National Insurance Company Limited.
Reported in (1931) ICR (59). 199.
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Smt N Paryakpal and ors, Vs Co-operative Tourist Transport Society
Ltd and Anr.
Reported in AIR-1980 Kant. 75.
Mohit Bhargava VS Bharat Bhusan and ors.
Reported in (2007) 4 SCC P 795.
R.K. Sardar VS Jaffar Sub and Anr.
Reported in 2017(4) ICC. Kant . 820.
Shine up Fibres Ltd VS Premier Threads Pvt Ltd and ors.
Reported in 2015 SCC. Online Cal-773.
22. Learned Advocate for the opposite Parties submits that the decree
can be executed by the Additional District Judge 3rd Court at
Burdwan which has passed the decree. Learned Advocate draws
attention to the provisions contained in Section 37 and Section 38 of
the Code of Civil Procedure and provision contained in Order 21 Rule
10 of the said code and submits that the execution case was filed in
Court of the Additional District Judge, 3rd Court Burdwan (then
undivided) in the year 2015, being the 'Court which passed the decree'
and at the time of filing and even now has territorial dominion of the
property sought to be attached and sold in execution of money decree.
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23. Learned Advocate further submits that even after bifurcation of the
District Burdwan the property of the Judgment Debtor sought to be
attached and sold falls under territorial jurisdiction of the District
Judgship of Purba Bardhaman more particularly, the Learned
Additional District Judge 3rd Court Purba Bardhaman and accordingly
Section 39 of the Code of Civil Procedure 1908 has no application as
contended by the petitioner. Learned Advocate also submits that the
argument of the judgment debtor/petitioner is based upon the
territorial situs of the Land which stood acquired and falling within
the dominion of District Judgship of 'Paschim Bardhaman' and thus
fallacious, since the territorial jurisdiction of the property sought to be
attached in execution of the money decree fall within the territorial
limits of Additional District Judge 3rd Court Purba Bardhaman where
the execution is filed and pending. Moreover District Judgeship of
'Paschim Bardhaman' is not the 'Court which passed a decree' and
the property sought to be attached and sold on execution of the
money decree is situated within the territorial limits of the District
Judgship of 'Purba Bardhaman' and accordingly the execution was
rightly levied before, the "Court which passed a Decree' and b) Court
having territorial, jurisdiction over the property sought to be attached
and sold in execution of the money decree, being the bunglow of the
District Magistrate Burdwan (now Purba Bardhaman) in view of
Section 37 of the Code of Civil Procedure 1908.
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24. Learned Advocate relied upon following judicial precedents.
Mohit Bhargava Vs Bharat Bhusan Bhargava.
Reported (2007) 4 SCC 795
Shyam Singh Vs Collector Distt Hamirpur
Reported in 1993 Supp(1) SCC-P-693
Mechano Paper Machines Ltd Vs NEPC Papers and Boards Ltd.
Reported in AIR-2012 Cal-26
Ambika Ranjan Majumder Vs HanikganjLoan Office Ltd.
Reported in AIR-1929 Cal 818.
25. Before proceeding to adjudicate the matter in issue it is necessary
at the outset to consider the provisions contained in Section 37,
Section 38, Section 39 and Section 51 of the Code of Civil Procedure.
26. Section 37 of the Code of Civil Procedure provides as follows:
" The expression "Court which passed a decree," or words to that effect,
shall, in relation to the execution of decrees, unless there is anything
repugnant in the subject or context, be deemed to include -
(a) where the decree to be executed has been passed in the exercise of
appellate jurisdiction, the Court of first instance, and
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(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.
[Explanation. - The Court of first instance does not cease to have
jurisdiction to execute a decree merely on the ground that after the institution
of the suit wherein the decree was passed or after the passing of the decree,
any area has been transferred from the jurisdiction of that Court to the
jurisdiction of any other Court; but, in every such case, such other Court shall
also have jurisdiction to execute the decree, if at the time of making the
application for execution of the decree it would have jurisdiction to try the said
suit.]"
27. Section 38 of the Code of Civil Procedure provides as follows:
"A decree may be executed either by the Court which passed it, or
by the Court to which it is sent for execution."
Section 39 of the Code of Civil Procedure provides as follows:
"(1) The Court which passed a decree may, on the application of the
decree-holder, send it for execution to another Court [of competent
jurisdiction],
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(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 not 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 situate
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 reason,
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.]
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[(4) Nothing in this section shall be deemed to authorise the Court which
passed a decree to execute such decree against any person or property outside
the local limits of its jurisdiction.]"
28. In the case of Smt Uma Kanoria (supra) this Court observed as
follows:
" 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.
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If the movable property such as money against which execution is asked for
and is 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."
28. In the case of Salem Advocate Bar Association (supra) the Hon'ble
Supreme Court observed as follows:
29. Section 39 does not authorise 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.
30. In the case of M/S G.R. Industries a Division Bench of this Court
observed as follows:
" 23. Contrary to the submission of the appellant that the executing
court found the execution proceedings launched in this court to be
incompetent, it appears that what was found to be without jurisdiction was the
essay by the executing court to execute the decree by seeking a property
25
outside the territorial limits of this court's ordinary original civil jurisdiction.
Indeed, if the executing court or the order impugned had found that the
execution proceedings were altogether incompetent, the execution case would
have been dismissed and costs could not have been awarded to the decree-
holder.
24. The moot question is whether this court in exercise of its authority on the
original side can stretch its arms to reach out to a property beyond its
territorial limits in course of execution, whether of a decree passed by this
court or as a transferee of a decree. As a proposition of law, it cannot be said
that a civil court may not touch a property beyond its territorial limits. Such a
proposition would lead to a rightful claimant approaching several courts to
obtain an order of attachment or an order pertaining to an immovable property
situated outside. Further, the principle embodied in Section 21 of the Code
must never be lost sight of and the distinction between inherent lack of
jurisdiction and the lack of jurisdiction on territorial or pecuniary grounds can
never be over-stated. At the same time, Section 21 cannot be the refuge of a
scoundrel to enable colluding parties to procure orders to affect an immovable
property to the prejudice of a stranger who has an interest in such immovable
property. In other words, the bar of raising a belated objection under Section
21 of the Code may operate on the parties to the action, but a stranger to the
proceedings cannot be bound by the genuine or contrived acquiescence of the
parties to the action to be precluded from questioning the jurisdiction or the
26
authority of the court to entertain the action or continue interim orders that
may have been passed, whether before or after a decree.
25. It is in such light that the present matter must be approached. Upon it
being evident that a receiver had been appointed in respect of a property
outside jurisdiction in 2005, an objection on such ground could not have been
taken by the appellant herein in 2016 or 2017; but such inability of the
judgment-debtor would not fasten to a stranger affected by an order perceived
to have been passed an error or excess of jurisdiction. Thus, the locus and the
propriety of the second respondent herein to approach the executing court here
was beyond question."
31. In the case of M/S Auto Trade Finance Corporation (supra) this Court observed as follows:
"18. I find nothing in Section 39 of the Code of Civil Procedure, 1908 to hold that it conferred any discretion on the Court passing the decree either to execute the decree itself or to transfer it to another Court where the property against which execution is sought is situated outside the local limits of its jurisdiction. In my view Section 39 never curved out an exception to the universal principle (a principle of "International Jurisprudence", as called by Atkinson, J. in Bank of Bengal v. Sarat Kumar Mitra, 48 IC 943) that a Court cannot ordinarily issue its processes beyond its territorial limits. This section only empowered the Court passing a decree to transfer it for execution to another Court. Even before insertion of Sub-section (4) with effect from July 27 1st, 2002 it did not empower the Court passing a decree to execute it against any person or property outside the local limits of its jurisdiction. The word "may" in Section 39 of the Code of Civil Procedure, 1908, in my opinion, does not signify anything more than saying that the Court passing the decree is empowered to transfer it for execution to another Court of competent jurisdiction.
19. It is, however, entirely for the decree-holder to decide what he will do with the decree. If he, instead of applying for transfer of a decree to another Court of competent jurisdiction, applies for its execution to the Court passing it with the prayer for issuing its processes beyond its territorial limits, he approaches the wrong forum at his own peril; and such application has to be rejected by the Court passing the decree, once the factual position comes to its notice from the records, or is brought to its notice by the judgment-debtor. The instant case is exactly one of such cases; hence the execution application is liable to be dismissed."
32. In the case of Smt N. Pariyakkal (supra) the Hon'ble Court observed as follows:
'10. In the present case there is no dispute that the Court of the Civil Judge is a Court of competent jurisdiction for the purpose of Section 39 C. P. C. as it has after the Amendment Act, jurisdiction to try an application for eviction under Section 21 of the Act. But, no application seems to have been made by the petitioners in the Court of the Munsiff for transfer of the decree to the 28 Court of the Civil Judge. Even so, the question is when the Court of the Munsiff transfers suo motu to the Court of the Civil Judge an application for execution of a decree for eviction passed by it (the Court of the Munsiff) on an erroneous understanding of the legal position as to the Court which has jurisdiction to execute such decree, has the Court of the Civil Judge no jurisdiction to execute the decree. There is a well-recognized distinction between inherent lack of jurisdiction and irregular assumption of jurisdiction. Where a Court does not lack inherent jurisdiction, but has irregularly assumed jurisdiction, it is well settled that the proceedings before it are not vitiated. Under sub-section (1) of Section 39 C. P. C. the Court of the Munsiff was competent to transfer the decree to the Court of the Civil Judge if the decree-holder had made an application for. such transfer and on such transfer the Court of the Civil Judge would have jurisdiction under Section 38 C. P. C. to execute the decree. In the present case when the Court of the Munsiff transferred the decree to the Court of the Civil Judge in the absence of an application by the decree-holder, there was, at the highest, irregular assumption of jurisdiction by the Court of the Civil Judge and there was no inherent lack of jurisdiction for, the Court of the Civil Judge to execute the decree. That the exercise of jurisdiction by the Civil Judge in such circumstances, is not vitiated, 4, is clear 'from the decision in Merla Ramanna v. Nallaparaju wherein the Supreme Court quoted with approval the following observations of the Madras High Court in Balakrishnayya v. Linga Rao (AIR 1943 Mad 449 at p. 4513):29
"We consider that the true effect of Section 39 is to recognize the transferee - Court as having inherent jurisdiction, to sell or deliver properties situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. From this it follows that the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the Tenali Sub-Court when proceedings were commenced in it, but that objection not having been taken in the first instance, the judgment-debtor must be held to have waived it."
In the present case also, objection as to the jurisdiction to execute the decree, was raised by respondent-2 before the learned Civil Judge, more than two years after the decree was transferred to his Court from the Court of the Munsiff. However, Sri. Rama Rao submitted that objection as to the jurisdiction can be raised at any time and that since the legal position as to whether the Court of the Civil Judge had jurisdiction to, execute the decree for eviction transferred to it, was settled only by the ruling of Malimath, J., in Ex. S. A. No. 43 of 1977* respondent-2 could not raise such objection regarding jurisdiction at - any earlier point of time. We are unable to accept this explanation. The mere fact that the aforesaid ruling of Malimath, J., came later, was no ground for respondent-2 not raising the objection's to the jurisdiction at the earliest occasion.'
33. In the case of Mohit Bhargava (supra) the Hon'ble Supreme Court observed as follows:
30
"5. We shall first deal with the objection of the decree holder to the transfer of the execution to the court at Indore having jurisdiction over the property sought to be brought to sale. The decree holder who appeared in person as also the counsel who was appearing on his behalf in Petition for Special Leave to Appeal (Civil) No. 7742 of 2006 argued that Section 39(4) of the Code as amended in 2002, was not attracted since this was not a case to which Section 39(1) was applicable. It was contended that the court which passed the decree had the jurisdiction to execute the decree and the decree holder had approached that court for execution of the decree. There was no defect in jurisdiction in seeking to enforce the decree through the court which passed the decree. It was submitted that the decree was being executed by the present court at Gwalior only because of the abolition of the court before which the execution petition was originally filed and the High Court misunderstood the factual position while coming to the conclusion that Section 39(4) was attracted. On behalf of the judgment debtor it was pointed out that though normally it is correct to say that the court which passed the decree has the jurisdiction to execute the decree, the moment the decree holder sought to execute such a decree against property lying outside the jurisdiction of that court, Section 39(4) of the Code was attracted and the court was obliged to transfer the decree for execution to the proper court. Section 42 of the Code was referred to. Counsel further contended that earlier, in terms of Section 39(1) of the Code, a discretion was vested in the court, either to proceed with the execution of the decree or to transfer the same to another court as 31 understood by some of the decisions. There was a conflict of judicial opinion. The legislature had therefore stepped in with an amendment in the year 2002 curtailing that discretion and introducing sub-section (4) in Section 39 of the Code making it clear that any attempt of the court to proceed with the execution against a property outside the jurisdiction of that court, would be one without authority and this legislative intent had been properly understood by the High Court when it transferred the decree to another court. Both sides brought to our notice Salem Advocate Bar Association, T.N. Vs. Union of India [2005 (6) S.C.C. 344) with particular reference to paragraphs 22 to 24 dealing with Section 39 of the code.
6. In that decision, clarifying the fields of operation of Order XXI Rule 3, Order XXI Rule 48 and Section 39 of the Code, this Court stated:
"24. 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 with the conditions stipulated in those provisions. Thus, the provisions, such as, Order 21 Rule 3 or Order 21 Rule 48 which provide differently, would not be affected by Section 39(4) of the Code.""
34. In the case of R.K. Sardar (supra) the Hon'ble Court observed as follows:
" 14. The Hon'ble Supreme Court in the case of Mohit Bhargava .vs. Bharat Bhushan Bhargava reported in (2007)4 SCC 795 while considering the 32 provisions of sub- section (4) of Sections 39 of CPC as inserted by Act No.22/2002 w.e.f. 1.7.2002, held at paragraphs 7 and 8 as under:
7. There cannot be any dispute over the proposition that the court which passed the decree is entitled to execute the decree. This is clear from Section 38 of the Code which provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. Section 42 of the Code indicates that the transferee court to which the decree is transferred for execution will have the same powers in executing that decree as if it had been passed by itself. A decree could be executed by the court which passed the decree so long as it is confined to the assets within its own jurisdiction or as authorized by Order XXI Rule 3 or Order XXI Rule 48 of the Code or the judgment debtor is within its jurisdiction, if it is a decree for personal obedience by the judgment debtor. But when the property sought to be proceeded against, is outside the jurisdiction of the court which passed the decree acting as the executing court, there was a conflict of views earlier, some courts taking the view that the court which passed the decree and which is approached for execution cannot proceed with execution but could only transmit the decree to the court having jurisdiction over the property and some other courts taking the view that it is a matter of discretion for the executing court and it could either proceed with the execution or send the decree for execution to another court.33
But this conflict was set at rest by Amendment Act 22 of 2002 with effect from 1.7.2002, by adopting the position that if the execution is sought to be proceeded against any person or property outside the local limits of the jurisdiction of the executing court, nothing in Section 39 of the Code shall be deemed to authorize the court to proceed with the execution. In the light of this, it may not be possible to accept the contention that it is a matter of discretion for the court either to proceed with the execution of the decree or to transfer it for execution to the court within the jurisdiction of which the property is situate.
8. Pending a suit, the court approached with the suit, may have jurisdiction to order attachment of a property even outside its jurisdiction. In execution, under Order XXI Rule 54 of the Code, it may also have jurisdiction to order attachment of the property prohibiting the judgment debtor from transferring or charging the property in any way when it exercises its jurisdiction over the judgment debtor though not over the property itself. It could in such a case issue a precept in terms of Section 46 of the Code and thereupon, the court to which the precept is sent, has to actually attach the property in the manner prescribed. Section 136 of the Code provides for an order of attachment in respect of a property outside the jurisdiction of the court and sending the order of attachment to the district court within whose local limits the property sought to be attached, is situate as provided for therein. But Section 136 clearly excludes execution of decrees from within its purview. An execution against immovable property lying outside the 34 jurisdiction of the executing court is possible in terms of order XXI Rule 3 of the Code which governs a case where the particular item of immovable property, forms one estate or tenure situate within the local limits of jurisdiction of two or more courts, and one of those courts is approached for execution of the decree against that property. In a case where Order XXI Rule 3 has no application, the position seems to be that if a decree holder wants to proceed against a property situate outside the jurisdiction of the court which passed the decree, he has to get the decree transferred to the appropriate court for execution on moving the executing court in that behalf. Whatever doubts there might have been earlier on this question, must be taken to have been resolved by the introduction of sub-section (4) of Section 39 of the Code which is a mandate to the executing court to desist from proceeding against a property situate outside its jurisdiction, unless it be a case coming under Order XXI Rule 3 of the Code.
15. In view of the amended provisions of sub-section (4) of Section 39 of CPC and the dictums of the Hon'ble Supreme Court stated supra, it is clear that the Executing Court at Davangere has no jurisdiction to execute the decree since the petitioner/judgment debtor is a resident of Chitradurga as mentioned in the cause title of the original suit, decree, execution petition as well as in the present writ petitions."
35. In the case of Mechano Paper Machines Ltd (supra) a Learned Division Bench of this Court observed as follows:
35
'9. A conjoint reading of the aforesaid provisions makes it clear that a decree can be executed either by the Court which passed the decree or the one to which it is sent for execution. The Court which passed the decree on an application of the decree-holder may transfer the decree to another Court having pecuniary jurisdiction to entertain the suit. In any of the circumstances mentioned in sub-sections (a) to (d) of Section 39(1) of the Code. Apart from the application of the decree-holder for transfer, the original executing Court can also of its own motion send it to any subordinate Court of competent jurisdiction for execution. Thus, if the pecuniary limit of the original Court which passed the decree is enhanced by law at the time of filing the application for execution from the original pecuniary limit, the Court which passed the decree of its own can send the decree to a subordinate Court which is then capable of entertaining the suit if filed at that time. Similarly, in a situation where the territorial jurisdiction of the Court has been charged by virtue of any law for the time being in force since the passing of the decree, the original Court which passed the decree can also send the decree for transfer to a Court which would have been the competent Court at a point of time when the original Court proposes to transfer the decree.
10. The sub-section (4) of Section 39 which has been incorporated by way of an amendment is couched in the negative form and thus, is mandatory which debars the Court which passed the decree to execute the decree against any person residing or carrying on business or the property situated beyond the territorial limits of the same.' 36
36. Upon considering the rival submission and the Judicial decisions it will appear that the point of law raised by the Petitioner relates to provision contained in sub-section 3 and 4 of Section 39 of the Code of Civil Procedure and the judicial decisions on those provisions on the other hand the point of law raised by the opposite parties is with regard to the provisions contained in Section 38 of the Code of Civil Procedure and those contained in Order 21 Rule 3 and Rule 48 of the Code of Civil Procedure.
37. As per Section 38 of the Code of Civil Procedure a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution.
38. In the instant case upon perusal of the petition for execution it will appear that the Decree-holder/opposite parties have sought execution of the decree by attachment of Bungalow of D.M. Purba Medinipur thus Order 21 Rule 48 of the Code of Civil Procedure which deals with Salaries and allowances of servant of Government, or Railway Company or local Authority is not applicable to the facts of the case.
39. With regard to Rule 3 of Order XXI of the Code of Civil Procedure immovable property to be attached forms one estate or tenure situated within local limits of jurisdiction of different Courts in this case immovable property forms jurisdiction of one Court thus this rule is also not applicable. 37
40. It is an admitted position that the immoveable property sought to be attached is situated within the jurisdiction of the Court Executing the Decree. The question which comes for consideration is whether the Court executing the decree has jurisdiction to execute the decree at present , secondly whether the District Magistrate Purba Bardhaman whose bungalow is attached has the jurisdiction and power to implement the decree dated 20/12/2013 passed in Land Acquisition Case No. 22(IV) of 1995-1996 arising out of Land Acquisition case No. 31 of 2003.
41. At the time of institution of Land Acquisition case No. 22(IV) of 1995- 19 thereafter registered as Land Acquisition Case No-31 of 2003, the opposite party/Judgment Debtor was State of West Bengal through Land Acquisition Collector Burdwan. Direction was also issued upon the Land Acquisition Collector Burdwan to make the payment. At the time of institution of money execution case in 2015, also the Land Acquisition Collector Burdwan had the jurisdiction over the matter and during 2018 during pendency of the said Money Execution Case, District Burdwan was divided into two parts that is Purba Bardhaman and Paschim Burdwan. Thus pursuant to such division the designation Land Acquisition Collector Burdwan Ceases to exist, and it is designated as Land Acquisition Collector Purba Bardhamen, and Land Acquisition Collector Paschim Bardhaman according to area.
42. Hence necessary amendment ought to have been made in Money Execution Case. This execution case involves not attachment of property of an 38 individual but that of a Government Official. Thus even if the property of the Officer of the Government sought to be attached is situated within the jurisdiction of the Executing Court, the Executing Court has to satisfy itself upon giving the said Government Officer an opportunity of being heard and if necessary on obtaining affidavit regarding his jurisdiction and power to comply the decree when such question of jurisdiction and authority of such Government officer comes before Court.
43. In the case of an individual the obligation to comply the decree continues till his death. But in Case of Government Authority when there is division of any district or bifurcation of power and authority necessary changes with regard to the administrative position should be taken into consideration before proceeding in execution case against Government Officers.
44. It is usual in the Administrative Procedures that by bifurcation of any District or Sub-Division or State the matter pending before Administrative Officers with regard to compensation or acquisition or any administration issue are transferred to those having authority and jurisdiction to deal with the same. Thus it is quite natural that an official who was dealing with a matter or hearing a matter may not have jurisdiction over a matter after bifurcation of a district, sub-division or State. An official after bifurcation of a district will deal with only those matters in which he retains the jurisdiction and other matters will be transferred and decided by those officers who have acquired jurisdiction by virtue of such bifurcation.
39
45. In Land Acquisition Cases also where Land Acquisition Collector or Courts loses jurisdiction due to bifurcation of Districts relevant case files are transferred to the Land Acquisition Collector having jurisdiction for disposal or necessary steps. In the event Land Acquisition Cases are disposed either by District Court or Collector and Award of payment of Compensation reaches finality prior to bifurcation of District, the relevant case files with regard to land acquisition cases and award of compensation are send to those Land Acquisition Collector within whose jurisdiction the Land acquired falls. The Land Acquisition Collector within whose jurisdiction the land which was acquired and compensation assessed falls has the power on receipt of the compensation case files to issue notice upon award holder and disburse the compensation or take necessary clarification which is required. In the event the Land Acquisition Collector having jurisdiction and authority to disburse compensation fails and neglects to act, necessary execution proceedings is to be instituted before the Learned District Judge within whose jurisdiction Land Acquisition Collector has office and discharges his function. In the event the Land Acquisition Collector ceases to have jurisdiction and authority to pay compensation and the power and jurisdiction is transferred to another Land Acquisition Collector due to bifurcation of district the execution case is required to be transferred to the District Judge within whose jurisdiction the Land Acquisition Collector having power to pay compensation discharges function, and the said Land Acquisition Collector must be a party in the Execution Proceedings arising out of Award for payment of compensation. In 40 the instant matter also it appears that pursuant to the order dated 27-06-2024 passed in this application, and in terms of direction dated 04-07-2024 issued by the Additional Chief Secretary Government of West Bengal upon the District Magistrate and Collector Paschim Bardhaman, regarding calculation of decretal dues and sending the same to the Department of Land and Land Reforms and Refugee Relief and Rehabilitation necessary steps were taken by District Magistrate and Collector Paschim Bardhaman and compensation of Rs. 3,81,465/- is already paid. Thus the Learned Court erred in rejecting outright the submission of the Learned Government Pleader that the decree holder's property in relation to which the decree was passed in Khantpukur Mouza falls within the jurisdiction of Paschim Bardhaman and it has become incumbent on the part of D.M. Paschim Bardhaman to pay the compensation. Learned Executing Court before passing order of payment of compensation upon District Magistrate Purba Bardhaman, ought to have considered the submission of Learned Government Pleader and sought an affidavit from District Magistrate Purba Bardhaman as to whether the decree holder's property in relation to which decree was passed falls within the jurisdiction of Paschim Bardhaman or Purba Bardhaman and whether the District Magistrate Purba Bardhaman or District Magistrate Paschim Bardhaman has jurisdiction and authority to pay compensation and whether it incumbent upon District Magistrate Paschim Bardhaman to pay the compensation. But by not doing so the Learned Court committed an error.
41
46. Thus the Order No-54 dated 12/04/2024 and Order No-55 dated 17/05/2024 cannot be sustained and the same should be set aside.
47. Hence this Revisional Application stands allowed. Orders dated 12/04/2024 and 17/05/2024 passed by Learned Additional District Judge 3rd Court Purba Bardhaman in Money Execution Case No. 19 of 2015 arising out of LA Case No. 31/2003 are set aside . Let the Money Execution Case No-19 of 2015 be transferred to the Learned District Judge Paschim Bardhaman forthwith upon communication of this Order Learned District Judge Paschim Bardhaman is requested to hear and dispose the Money Execution Case expeditiously if it is the designated Court or send it to the Court which is designated for this purpose. Learned Transferee Court shall issue notice to the parties and short date be fixed for hearing of the case. Before the case is taken up for hearing by the transferee court the Learned District Magistrate Paschim Bardhaman, shall consider the Execution case petition and the Calculation Sheet submitted by the opposite parties in paragraph 15 of the Affidavit in opposition and ascertain as to whether any further sum is payable to the decree-holders. In the event such further sum is payable necessary payments shall be made to the decree-holder and report should be submitted before the Learned Court. In the event the District Magistrate is of the view that no further sum is due and payable a report also should be submitted before the Learned Court giving reasons. In both cases copy of the report should be served upon the decree-holders. The receipt and payment of further sum will be without prejudice to the rights of the parties. The District Magistrate 42 Paschim Bardhaman may if necessary with regard to estimating and disbursing further sum hear the decree holders or their Learned Advocate Copy of Execution case, Revisional Application along with supplement Affidavit and Affidavit in opposition containing Calculation Sheet shall be served upon District Magistrate Paschim Bardhaman for necessary steps. It is hereby made clear that this Court has not entered into the merits of the Execution Case and all points are left open.
Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(Biswaroop Chowdhury,J)