Karnataka High Court
Narayansa S/O. Rajansa Patil vs Om Sai Corporation on 16 July, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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®
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 16TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.80300/2013 (GM-CPC)
BETWEEN:
NARAYANSA S/O. RAJANSA PATIL
AGE: 55 YEARS,
OCC: BUSINESS
R/O. GUDUR, TQ:HUNAGUND
DIST: BAGALKOT. ... PETITIONER
(BY SRI. V R DATAR, ADV.,)
AND
OM SAI CORPORATION
MIRAJ BY ITS PARTNER
SRI DATTATRAY S/O. HANUMANTA DUBE
AGE: 49 YEARS, OCC: BUSINESS
R/O. SANYA ARCADE,
NEAR SHIVAJI STADIUM, MIRAJ,
TQ: MIRAJ DIST: SANGLI
(MAHARASHTRA). ... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS IN EXECUTION PETITION NO.21/2012 ON
THE FILE OF SENIOR CIVIL JUDGE, HUNAGUND AND ON
PERUSAL OF THE SAME BE PLEASED TO QUASH THE
ORDER DATED:04/07/2013 PASSED ON I.ANO.4 PASSED
BY THE SAID COURT VIDE ANNEXURE-J.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
I have heard Sri.V.R.Datar, learned counsel appearing for writ petitioner. The short point that arise for consideration in this writ petition is:
"Whether the transferee Court in an execution proceedings ceases to have the power to execute the decree transferred to it on account of execution petition being dismissed for any reason whatsoever though it has not forwarded a certificate to the transferor Court as required under Section 41 of C.P.C."
2. Facts in brief leading to the filing of this petition can be crystallized as under:
(i) Respondent decree holder having filed a suit for recovery of money due to it in O.S. No.67/2004 obtained a decree and to enjoy the fruits of the decree, execution petition was filed in the Court of Senior Civil Judge, Sangli, (hereinafter referred to as "transferor :3: Court") State of Maharashtra. By order of precept, decree came to be transferred to the Court of Senior Civil Judge, Hungund (hereinafter referred to as "transferee Court") for execution of said decree.
(ii) During pendency of the said execution proceedings, petitioner-judgment debtor has paid certain amounts at intervals and it was being adjourned from time to time for further payment. Decree holder was required to file a memo of calculation and despite granting sufficient time, same was not filed. Matter was listed on 08.06.2012 for filing memo of calculation Court and on account of absence of the decree holder and his counsel on the said date, executing Court closed the execution proceedings on account of Memo of calculation having not been filed though on behalf of Decree Holder counsel made a prayer for grant of further time.:4:
(iii) Subsequently, another execution petition came to be filed afresh by the decree holder before the transferee Court namely the Court of Senior Civil Judge, Hungund on 17.09.2012 by the decree holder. The judgment debtor filed two applications I.A. No.3 under Order VIII Rule 1(a) r/w Section 151 of C.P.C. for production of documents and I.A. No.4 under Section 42 r/w 151 of C.P.C. to dismiss execution petition for want of jurisdiction to execute the decree. The said applications were resisted by the decree holder by filing detailed statement of objections. Executing Court after considering rival contentions raised by respective learned advocates appearing for the parties, by order dated 04.07.2013 - Annexure-J allowed I.A. No.3 and dismissed I.A. No.4 filed under Section 42 of C.P.C. by the judgment debtor. It is this order dismissing I.A. No.4 which is impugned in the present writ petition.:5:
3. Contention of Mr.V.R.Datar, learned counsel appearing for the judgment debtor is:
(i) When transferor Court has transferred the decree to the present executing Court (transferee Court) to execute the decree by way of precept, it was incumbent upon the executing Court namely the transferee Court to conclude the execution proceedings and send a certificate to the transferor Court on execution petition having been dismissed on 08.06.2012 Annexure-
C.
(ii) Transferee Court became functus officio or in other words, it ceased to have any jurisdiction and it could not proceeded to execute the decree that had been transferred to it by transferor Court since execution proceedings came to end after dismissal.
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(iii) Executing Court ought to have reported about the closure of the proceedings to the transferor Court and on account of not sending a report, the transferee Court by default cannot retain its power which had got spent itself.
4. Hence, he contends that transferee Court was not justified in dismissing I.A. No.4 filed by judgment debtor under Section 42 of C.P.C. and prays for setting aside the said order which is impugned in the present petition and seeks for allowing I.A.No.IV Annexure-G.
5. In order to answer the point formulated herein above, I am of the considered view that it would be necessary to take note of following two statutory provisions of Code of Civil Procedure, 1908 which would have a direct bearing and impact on the said point, namely Sections 41 and 42 of C.P.C. They read as under:
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41. Result of execution proceedings to be certified The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or, where the former court fails to execute the same the circumstances attending such failure.
42. Powers of court in executing transferred decree [(1)]The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
[(2)] Without prejudice to the generality of the provisions of sub-section (1), the powers of the Court under the sub -section shall include the following powers of the court which passed the decree, namely:-
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(a) power to send the decree for execution to another Court under section 39;
(b) power to execute the decree against the legal representative of the deceased judgment debtor under section 50;
(c) power to order attachment of a decree.
(3) A court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution any of the following powers, namely:-
(a) power to order execution at the instance of the transferee of the decree,
(b) in the case of a decree passed against a firm, power to grant leave to execute such decree against any, person, other than such a person as is referred to in clause(b) or clause(c), of sub-rule(1) of rule 50 of Order XXI] :9:
6. Section 42 expressively gives the transferee Court which executes the decree sent to it the same power vested in executing such decree as if the decree had been passed by itself. In fact, the transferee Court executing the decree transferred to it can take into account the later events including the issue regarding enforceability of a decree. Section 47 of C.P.C. is clear and unambiguous on this aspect namely it defines the power of the Court executing a decree. Such executing Court is empowered to deal with all such questions relating to the execution, discharge or satisfaction of the decree and separate suit is expressly barred.
7. It is no doubt true that on a decree being transferred by way of precept by the transferor Court to another Court, it does not loose its power or in other words, it retains the said power. By virtue of such power being retained by the transferor Court it cannot be gainsaid such power of the transferee Court would be : 10 : subservient to the power of transferor Court. But on the other hand, power of the transferee Court is similar and analogous to the power of transferor Court. It is because of these reasons transferee Court it exercises all such powers which the transferor Court would have otherwise exercised. In fact, an issue regarding as to 'whether a decree imposing obligation on both the sides was performed or not' can be considered and examined by a transferee Court was an issue which came to be examined by the Apex Court in the case of JAI NARAIN RAM LUNDIA V/S KEDAR NATH KHETAN AND OTHERS reported in AIR 1956 SC 359 and it has been held that Section 42 of C.P.C. expressly gives such power to the transferee Court. It has also been held that such transferee Court has the same powers of transferor Court in executing a decree as if it has been passed by itself. Their Lordships have held as under:
20. Fry on Specific Performance was quoted to us (6th edition, Chapter IV, pages 546 : 11 : onwards) where the learned author states that relief can often be obtained after judgment along much the same lines as before: thus a party to a contract may, in a proper case, apply for rescission of the contract and so forth.
It was urged by the other side that even if that can be done it can only be done by the Court which passed the decree and not in execution. We do not intend to examine this because even if these remedies also exist, provided application is made to the proper Court, it does not affect the basic principle in execution that the executing Court must take the decree as it stands and cannot go behind it.
If the decree says that on payment being made some definite and specific thing is to be given to the other side, the executing Court cannot alter that and allow something else to be substituted for the thing ordered to be given.
8. The words "as if it has been passed by itself" used in Section 42 of CPC clearly indicates that 'transferee Court' will have to proceed with the : 12 : execution as if the decree transferred to it is passed by itself. In other words, the power of the transferee Court is wider than the power of transferor Court. Where a decree passed by District Judge is transferred to Munsiff Court or a Civil Judge (Jr.Dn.) for being executed it cannot be gainsaid that Court of Munsiff (transferee) being a Court of limited jurisdiction, said decree cannot be executed by Munsiff Court or Civil Judge (Sr.Dn.) Court. It is for this reason it has to be held that the powers of the transferee Court is wider than that of the transferor Court.
9. Section 41 CPC would indicate that Court to which a decree is sent for execution has to send a certificate to the Court which passed such a decree or transferred such decree of the fact of execution thereof or if it fails to execute the same explaining the circumstances of such failure to execute decree. It is on such certificate being sent by the 'transferee Court' to : 13 : the 'transferor Court' the power vested with the transferee Court ceases, till then it retains the powers of executing decree so transferred to it. This view finds support from the judgment of Allahabad High Court in the case of AFTAB AHMAD AND OTHERS, JUDGMENT-DEBTORS V. THE HINDUSTAN COMMERCIAL BANK LTD., AMINABAD, KUCKNOW, DECREE-HOLDER reported in AIR 1960 ALAHABAD 558 wherein it has been held that non sending of a non satisfaction certificate at the most would be an irregularity and not an illegality. It has been held as under:
3. I am unable to see under what provision of law it can be urged that the application was not entertainable. The action which was to be taken thereafter under Section 41 by the Ambala court was only of a ministerial nature and the court was not required to do anything further.
The non-sending of the non-satisfaction certificate may be an irregularity, but it does not : 14 : affect the right of the decree-holder to put in a second execution application. Similarly there is no prohibition in law that two execution applications cannot simultaneously go on if the property against which execution is conflict on whether, if the property against which execution is sought by two different applications, is the same, whether in such case both executions can proceed simultaneously but so far as two executions by two different methods or against two different properties are concerned, there is no doubt.
10. Where a decree is transferred for execution, the original Court namely transferor Court would still retain jurisdiction and it can retransfer the proceedings to itself or to some other Court. However, where a decree is transferred for due execution without any limitation, the original Court has no longer the power to execute the decree until and unless transferee Court forwards a certificate of its failure to execute the decree and explaining the circumstances attending such : 15 : failure. In other words, the transferee Court looses its jurisdiction only when it sends a certificate to the transferor Court either certifying that the decree is duly satisfied or on sending a failure report to the transferor Court explaining the circumstances attending such failure. The reason or logic behind this can be illustrated by following ILLUSTRATION:
In a given execution proceedings, where the proceedings have been transferred from transferor Court to transferee Court and if for the reason of non payment of process fee the execution petition is closed it cannot be said that on account of the execution proceedings having been closed or dismissed for non payment of process fee and the like then transferee Court ceases to have control or jurisdiction to execute decree transferred to it for being executed. On application being filed it can be resorted or fresh execution petition can be filed.: 16 :
11. It is because of this precise reason the law makers have consciously under Section 41 of CPC have insulated the power of transferee Court by expressly stating that it has to either send a certificate reporting that decree is duly executed or its inability to execute the decree by assigning reasons thereof and it is only under these two circumstances the transferee Court would cease to exercise its power. The transferee Court retains its power to entertain an application for restoration of the very same execution petition and unless and until it sends a failure report its power to either entertain an application for restoring the dismissed execution petition or entertaining a successive execution petition is not lost and it does not get extinguished. In fact, a Division Bench of Madras High Court in the case OF NAGI REDDI SEETHARAMI REDDI AND ANOTHER V. THIKKAVARAPU KOTAMMA AND others reported in AIR 1947 MADRAS PAGE 431 has held as under:
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(5) An earlier case in the same High Court A.I.R.1984 Lah.728, which appears to deal directly with the point now before us, was not accepted by the majority of the Full Bench, but it seems to us, with great respect, to be preferable.
In this case it was held that, "Where a decree is transferred for execution, the original Court is not wholly divested of its jurisdiction but can still retransfer the proceedings to itself or to some other Court. Where, however, a decree is transferred for execution without any limitation, the original Court has no longer the power to execute the decree until and unless the decree is returned by the transferee Court with a certificate of non- satisfaction."
Reference is made in the judgment to A.I.R. 1933 Cal.906, where the same view was expressed after considering the Privy Council decision in A.I.R. 1916 P.C. 16. In 37 Mad.231, it was held that:
"a Court to which a decree is sent for execution is the only Court which has seisin of the : 18 : execution proceedings, and it retains its jurisdiction to execute the decree till it certifies under S.41, Civil P.C., to the Court which passed the decree, the fact of execution, or if it fails to execute the decree, the circumstances attending such failure. In such a case, the Court which passed the decree has no jurisdiction to entertain an execution application unless concurrent execution had been ordered or proceedings in the Court to which the decree was sent, had been stayed for the purpose of executing the decree in the former Court."
12. If the argument advanced by the learned counsel Sri.V.R.Datar, learned counsel is examined from a different angle namely, the original decree being under appeal and appellate Court would modify the decree in exercise of its appellate power by which time, the decree has already been put into execution and has got the decree transferred to the jurisdictional Court for being executed the powers of the transferee Court which is executing the decree would not get restricted to the : 19 : decree transferred which that has been sent by the transferor Court but transferee Court it has the power to execute appellate Court decree which has merged with the original decree and it cannot be gainsaid that decree which was originally sent by the transferee Court alone has to be executed and the decree passed by appellate Court cannot be executed without fresh order of transmission by transferor Court. The analogy behind this power is to ensure that decree holder is not compelled to approach the transferor Court every time when an execution petition is closed or dismissed by the transferee Court seeking issuance of fresh transfer.
13. In fact under similar circumstances, the full Bench of Patna High Court in the case of Radheshyam and others V. Devendra reported in AIR 1952 Patna 213 has held that transferor Court retains the jurisdiction except to the extent it has transferred to the transferee Court. It has been held as under: : 20 :
22. For the reasons which I have given I am of the opinion that the transferor Court retains jurisdiction to execute the decree except to the extent that jurisdiction to execute the decree has been given to the transferee Court.
25. For the reasons set out above, I would answer thus the question which has been referred to the Full Bench. Where a decree is transferred for execution by another Court, the transferee Court gets jurisdiction to execute the decree to the limits of its jurisdiction to execute its own decrees. The transferee Court retains this jurisdiction until it sends a certificate under Section 41 of the Code.
Outside the limits indicated the transferor Court retains the power to execute the decree. Whether an application for execution of the decree filed to the transferor Court before the sending of the certificate under Section 41 is an application to the "proper Court" within the meaning of Article 182(5) of the Schedule to the Limitation Act depends on the relief applied for. If it is one which the transferor Court can grant, the application is made to the "proper Court."
28. The Code of Civil Procedure has expressly given jurisdiction to the Court which passed the decree to execute it. Unless that jurisdiction is taken : 21 : away expressly by some provision of the Code, it continues. It may be possible by reading the various provisions of the Code to come to the conclusion that by necessary implication the jurisdiction of the Court, which passed the decree, to execute it is taken away in certain circumstances. I cannot for myself read the provisions of Section 41 of the Code to express anything of the kind suggested in the course of the argument that the Court which passed the decree would not execute it in any circumstance in the absence of a certificate from the Court to which the decree had been transferred for execution. Section 41 of the Code is not in the nature of a prohibition to the Court which passed the decree to execute it in any circumstance in the absence of a certificate. As I read Section 41, it conveys to me the meaning that it is the bounden duty of the Court, to which the decree was sent for execution, to certify to the Court which passed the decree that such execution had taken place, or where there had been failure to execute it, the circumstances attending such failure. From the earliest times it has been recognised by the Courts in India as well as by their Lordships of the Judicial Committee that simultaneous execution of a decree in different Courts can take place. It is too late now to contend otherwise. That being so, simultaneous execution of a decree by different Courts necessarily : 22 : implies that such Courts have jurisdiction to execute it. I can quite see that where a decree has been sent for execution to another Court, an application to the Court which passed the decree to execute it as against property not within its jurisdiction or to cause the arrest of the judgment-debtor not residing within its jurisdiction would be beyond the jurisdiction of such Court. There is, however, nothing in the provisions of the Code of Civil Procedure which would prevent the Court which passed the decree to execute it as against property within its jurisdiction or to cause the arrest of the judgment-debtor residing within its jurisdiction, although the decree had been transferred to another Court for execution. The Court to which the decree had been transferred could only execute it as against property within its jurisdiction, or cause the arrest of the judgment-debtor residing within its jurisdiction. The Court which passed the decree could never execute it as against property outside its jurisdiction or cause the arrest of the judgment-debtor residing outside its jurisdiction. My learned brother, Reuben, J., had dealt with the question referred to the Full Bench elaborately and I need not repeat what he has said. In my opinion, the answer to the question referred to the Full Bench should be, so far as jurisdiction is concerned, that the Court which passed the decree has jurisdiction to : 23 : execute it in certain circumstances inspite of the absence of any certificate under Section 41 of the Code from the Court to which the decree had been transferred for execution.
14. Learned counsel appearing for the petitioner has relied upon the judgment in the case of E.Krishna Reddy V. R.Prithvinathan reported in AIR 1979 Andhra Pradresh 6 to contend that transfer of a decree does not amount to transfer of business from one Court to another and the transfer of business contemplated under Section 151 C.P.C would arise only where cases are transferred under Section 24 of C.P.C. or where on account of re-organisation of Courts or by creation of new Courts, certain areas are tagged on to new Court on account of which the business pertaining to that area pending on the file of one Court is transferred to the file of any newly constituted Court. It is also held in the said decision that transfer of a decree in execution is certainly not a transfer of the business of one Court to another Court. There cannot be any dispute with : 24 : regard to the proposition of law laid down in the above judgment wherein it was not faced with a situation present in the instant case. A complete answer to this proposition has already been given by full Bench of Patna High Court which has also been discussed and analysed by me hereinabove by supplementing my views and opinion thereon.
15. Even otherwise, Hon'ble Apex Court in AIR 1973 SC 528 has held that transferee Court does not become the Court which passed the decree and even this Court in AIR 1967 Mysore 24 has held that transferor Court would have the jurisdiction in the circumstances to entertain an execution application. In that view of the matter, I am of the considered view that judgment relied upon by Sri.V.R.Datar would not come to the assistance of writ petitioner-judgment debtor.
16. For the reasons aforestated, writ petition is liable to be dismissed without being admitted. : 25 : Accordingly, it is dismissed. The judgment debtor-writ petitioner is at liberty to make a prayer for extending time before the executing Court for satisfying the decree and if such prayer is made, the executing Court shall consider the said payer on merits and in accordance with law after giving an opportunity to decree holder also. Executing Court is also at liberty to grant some reasonable time to the judgment debtor to pay the amount if it deems fit in the circumstance of such prayer being made and considering the objections of decree holder if any and by putting the judgment debtor on such terms as it deems fit.
Ordered accordingly.
SD/-
JUDGE BS