Punjab-Haryana High Court
Karam Chand vs Jasbir Singh on 21 February, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
C.R. No. 3537 of 2011(O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.R. No. 3537 of 2011 (O&M)
Date of Decision: February 21, 2012
Karam Chand
.....Petitioner
Vs.
Jasbir Singh
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.P.K. Gupta, Advocate
for the petitioner.
Mr.Sandeep Bansal, Advocate
for the respondent.
-.-
M.M.S. BEDI, J. (ORAL)
Vide impugned order dated April 23, 2011, learned District Judge, Hoshiarpur has, while dismissing the application under Section 24 of CPC for transfer of the objection petition from one Subordinate Court to another Subordinate Court has itself dismissed the objections while dismissing the application under Section 24 of CPC.
C.R. No. 3537 of 2011(O&M) [2]
Learned counsel for the petitioner has submitted that the learned District Judge could have only dismissed the application for transfer in the exercise of powers under Section 24 CPC but could not have dismissed the objections on merits by taking into consideration the other circumstances.
Learned counsel for the decree-holder/ respondent has argued that a District Judge or High Court exercising powers under Section 24 of CPC can transfer and withdraw any proceedings from a Subordinate Court but at the same time, the District Judge or High Court has got a jurisdiction to try or dispose of the proceedings itself pending before any Subordinate Court. It has been argued that the impugned order dismissing the objection petition of the petitioner, vide order dated April 23, 2011, should be deemed to be an order passed under Section 24 (1) (b) (i) CPC. Section 24 CPC reads as follows:-
"24. General power to transfer and withdrawal.-- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage:-
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court C.R. No. 3537 of 2011(O&M) [3] subordinate to it and competent to try or dispose of the same; or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it; and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal of any Court subordinate to it and competent to try or dispose of the same; or
(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which (is thereafter to try or dispose of such suit or proceeding) may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this Section, --
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) "proceeding" includes a proceeding for the execution of a decree or order.
(4) The Court trying any suit transferred or withdrawn under this Section from a Court of Small Causes shall, C.R. No. 3537 of 2011(O&M) [4] for the purpose of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."
Before appreciating the authority of the District Judge to dispose of the objections exercising powers under Section 24 (1) (b) (i) CPC, it is pertinent to observe here that the petitioner- judgment debtor has been trying all the possible delaying tactics to hamper the execution of decree dated April 22, 2003 passed on the basis of compromise wherein he had given an undertaking to demolish the shop in possession of the decree- holder and to re-construct the same within a period of two months and to put respondent- decree holder in possession of the same as his tenant at the rate of ` 400/- per month or to pay a sum of ` 2 lacs to the decree holder as damages. The objections filed by the petitioner under Order 21 Rule 66 CPC stands already dismissed on September 23, 2010 by the Executing Court. A revision petition filed against the said order has also been dismissed by the High Court on November 26, 2010. Thereafter the petitioner-judgment debtor filed an application under Section 10 of CPC for staying the suit filed by the respondent, for recovery. The application under Section 10 CPC has already been dismissed. It appears that the petitioner has also filed another suit for declaration that the decree which is sought to be executed by respondent is a nullity. Thereafter the petitioner seems to have filed objection that he had exchanged the property with his son. The C.R. No. 3537 of 2011(O&M) [5] learned District Judge while taking into consideration the conduct of the petitioner had dismissed the application under Section 24 of CPC taking into consideration the merits but it is pertinent to observe that no specific order has been passed by learned District Judge to the effect that he had withdrawn the objections from the Court Subordinate to itself and had taken up the objections for disposal in accordance with law. In view of absence of any such specific order for withdrawing the proceedings, the impugned order dated November 23, 2011 can be deemed to be an order only dismissing the application under Section 24 CPC. So far as order dated November 23, 2011 dismissing the objections of petitioner are concerned, the same is not sustainable as no such order has been passed by the District Judge specifically withdrawing the proceedings for adjudication by itself.
With the above observations it is held that howsoever frivolous the objections of the petitioner may be, these should have been disposed of by the Executing Court itself. It is hereby clarified that a perusal of Section 24 (1) (b) (i) CPC clearly indicates that the District Judge or the High Court can while deciding an application under Section 24 CPC withdraw any suit, appeal or other proceedings pending in any Court subordinate to it and try or dispose of the same or it could transfer the same for trail or disposal to any Court subordinate to it or re-transfer the same for trial or disposal to the Court for which it was withdrawn. The legislature in its wisdom has specifically required that a District Judge or High Court has to pass an order specifically withdrawing the suit, appeal or other proceedings pending in C.R. No. 3537 of 2011(O&M) [6] any Court subordinate to it. In the absence of any notice to the parties that the objections had been withdrawn from the Executing Court to the Court of District Judge under Section 24 of CPC, the order dated April 23, 2011 to the extent of dismissing the objections is set aside. The objections will be decided by the same executing Court with a direction to the said Court to decide the objections within a period of one month after the receipt of a certified copy of this order. The parties are directed to appear before the Executing Court on March 3, 2012 or the date already fixed before the Executing Court whichever is later.
Disposed of.
February 21, 2012 (M.M.S.BEDI) sanjay JUDGE