Madras High Court
Ram Narayan Bhatted vs Vimala Jhavar And Six Ors. on 23 November, 2001
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
ORDER K. Gnanaprakasam, J.
1. These appeals are directed against the orders passed by the learned single Judge in Application Nos. 4026 to 4035 and 4701 to 4720 of 1990 in E.P. Nos. 57 to 71 of 1986 in C.S. No. 28 of 1975.
2. Brief facts, which are necessary to dispose of these appeals, are as follows:
3. The Andhra Bank Limited, Madras instituted a suit in C.S. No. 28 of 1975 on the file of this Court against Zenith Lamps and Electricals Limited (in liquidation) and got a decree on 25.4.1979.
4. The appellant Ram Narain Dhattad got an assignment of the decree as per the order in Application No. 4218 of 1983 and filed execution petitions in E.P. No. 57 of 1986 for prohibitory order to attach the shares of H.K. Jhaver and three others of M/s. Little Oriental Balm Pharmaceuticals Company Limited, Madras. EP. No. 58 of 1986 was filed to attach the property in T.H.Road, Madras 81. Another E.P. No. 69 of 1986 was filed for issue of a prohibitory order to garnishee (United Pharma (India) Limited) not to transfer 100 ordinary shares of Rs. 10 each of the deceased Jhaver. Yet another E.P. No. 70 of 1986 was filed for attachment of 5,754 shares held by the said Jhaver in Tablets India Limited and EP. No. 71 of 1986 for attachment of the property in Mint Street, Sowcarpet, Madras. Prior to filing of these execution petitions before this Court, the decree holder had filed EP. No. 121 of 1985 in the High Court and the same was transmitted to Sub Court, Poonamallee, and numbered as EP. No. 80 of 1985, wherein an order of attachment had been passed in respect of the vacant site purchased in the name of Jhaver. While EP. No. 80 of 1985 was pending in the Sub Court, Poonamallee, the assignee decree holder filed the abovesaid execution petitions before this court against the defendants 5 to 10, who are the legal representatives of R.S. Jhaver. The defendants 5 to 10 contented the execution petitions before this court.
5. When the execution petitions came up for enquiry before the Master, an objection was raised on behalf of the defendants 5 to 10 that the execution petitions filed by the decree holder simultaneously at two different places, namely, at High Court, Madras and at Sub Court, Poonamallee are not maintainable for the reason that the decree holder did not obtain permission of the High Court by filing an application and no notice was given to the defendants 5 to 11 in this regard and no order has been passed by the High Court, granting permission to the decree holder for such simultaneous execution.
6. The Master overruled the objections raised by the defendants and held that the execution petitions were maintainable. Aggrieved by the order, the defendants 5 to 11 preferred appeals.
7. When the matters came up before the learned single Judge, the Court after having taken into consideration all the aspects of the case, came to the conclusion that in the absence of the permission not having been obtained by the plaintiffs/decree holder to take up simultaneous execution, the petitions were not maintainable and set aside the order passed by the Master and allowed the appeals. Aggrieved by the same, the assignee decree holder came on appeal.
8. The only question that arises for the consideration of this Court is as to whether the simultaneous execution of one and the same decree at two different Courts is maintainable in the absence of the notice and permission not having been obtained from the transferor Court, by the decree holder/assignee.
9. Learned Advocate for the appellants has submitted that there is no express provision either in the Civil Procedure Code or in the Original Side Rules of the High Court that permission should be obtained for simultaneous execution of the decree in two Courts. That in the absence of express provision to that effect, the execution petitions filed by the appellant/assignee decree holder at two different places are maintainable.
10. In response to the same, the learned Advocate for the respondent has submitted his argument that in the absence of permission from the transferor Court, execution before two Courts is not maintainable and supported the order passed by the learned single Judge of this Court.
11. Now, let us examine the relevant provisions in Civil Procedure Code and Original Side Rules of the High Court, which deals with 'execution'.
i. Part II of the Civil Procedure Code deals with Execution in general. Section 38 of CPC states, 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," thereby meaning that the decree would be executed by the Court which passed the decree or the court to which the decree is sent i.e. the transferee Court.
ii. Section 39 deals with Transfer of decree which runs as follows:--
"The Court which passed a decree may, on the application of the decree-holder, sent it for execution to another Court of competent jurisdiction."
iii. Section 41 CPC deals with 'result of execution proceedings to be certified, which states. 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, circumstances attending such failure." The certificate required under this Section to be sent by the transferee Court to the transferor Court or the Court of first instance is to have a constant check over the matter whether the decree has been satisfied partly or fully. If such a certificate is not made obligatory, then the satisfaction of the decree either in part or whole would not come to the knowledge of the Court, which passed the decree and it would result in a situation where the decree holder may execute the decree in entirety without furnishing the satisfaction of the decree, which would definitely cause irreparable loss and injury to the defendant and that therefore, the certificate required under Section 41 of CPC is made obligatory.
Order 21 of CPC is the Order, which deals with the different modes of execution and the procedures to be followed and also the rights of the plaintiff/decree holder and judgment-debtor, auction purchaser, persons having right in the property, so on and so forth.
iv. Order XXI Rule 6 prescribes the procedure, where courts desire that its own decree shall be executed by another court: The court sending a decree for execution shall send:-
a. A copy of the decree.
b. A certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or where the decree has been executed in part, the extent to which satisfaction has teen obtained and what part of the decree remains unsatisfied; and c. A copy of any order for the execution of the decree, or if no such order has been made, a certificate to that effect.
v. Order 21, Rule 21 of CPC speaks about simultaneous execution against the person and property of the judgment-debtor, which is not relevant for our case.
vi. Order 21, Rule 22 of CPC states about the notice of show cause against execution in certain cases:(1) Where an application for execution is made:-
a. More than two years after the date of the decree, or b. Against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of Section 44-A, or c. Against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.
vii. Order 21, Rule 37(1), 58, 99, 100 and 101 speak about the notice to be sent in an execution petition, but on different occasions and they also do not speak about simultaneous execution before two Courts.
viii. Order 21, Rule 22 is the only Section specifically prescribes the issuance of notice, on certain circumstances set forth therein at the time when an application is made for execution. But, the petition filed by the appellant does not fall under any of the category.
ix. The execution proceedings are also regulated by Civil Rules of Practice and the Rule 136 speaks about 'transmission of decree for execution'. It specifically mandates the requirement of the decree holder to specify the Court to which the transmission of the decree is sought as in Form No. 52 and Rule 138 speaks about return of decree to the transmitting Court, which states if after a decree has been sent to another Court for execution, the decree holder does not within one year from the date of receipt of the decree on such transfer, apply for the execution thereof, the Court to which the decree has been sent shall certify the fact that no application for execution has been made to the Court which passed the decree and shall return the decree to the court. This rule also specifics about the certificate to be issued by the transferor Court about the fact that no application for execution has been made to the Court which passed the decree. These are all the provisions and rules framed not only to check but also to safeguard the interest of the judgment debtor that any satisfaction made by the defendant/judgment debtor towards the decree has got to be notified to the court which passed the decree. These rules also do not prescribe any notice to be rent when execution petition is filed simultaneously before two Courts.
x. Order 39 of Original Side Rules of the High Court deals with 'execution of decree and orders'. Rule 1 of Order 39 speaks about 'application for the execution of decree to be made to the Registrar. Rule 2 speaks about transmission of the decree or order to another Court for execution. If the application complies with the provisions of the code and of the rules, the Registrar shall transmit the documents mentioned in Order 21, Rule 6 of the Code to the court to which transmission is sought.
xi. Rule 6 of Order 39 deals with contemporaneous attachment of property in more than one district, which states where a person against whom execution is sought has property in two or more districts, the Court may, on being satisfied of its necessity, cause a copy of the decree obtained against such person to be transmitted for execution in some or all of the districts contemporaneously. In the certificate of non-satisfaction to be sent therewith to the Court in each of such districts, it shall be stated to what other Courts the decree has been sent for execution. At the same time a letter shall be sent to the Judge of one of such Courts requesting him to attach and sell the property in his district (hereinafter mentioned as district A) or a sufficient portion thereof, and certify the result to this Court, and with such letter shall be sent a copy of the letter sent to the Judge of each of the other Courts. A letter shall also be sent to the Judge of each of the Courts requesting him to attach the property in his district, but not to sell the same until requested by this Court to do so. The rule also speaks about the sending of certificate of non-satisfaction and it is made statutory for the reason that the transferee Court should know whether the decree has been or has not been satisfied or partially satisfied.
xii. Rule 11 of Order 39 speaks about the application for execution, which application should comply with the provisions of the code.
xiii. Rule 12 of Order 39 states, "The provisions of Order 21, Rule 22, Civil Procedure Code shall apply and where notice is necessary, the Registrar shall direct notice to be taken out and served. Unless the Judgment debtor gives notice to the applicant of his intention to appear, an affidavit of service of the notice shall be filed in court not less than two days before the return-day. If application is made for the issue of execution against the person and property of the judgment-debtor at the same time the Registrar shall refer the case to the Master and the application shall be supported by affidavit stating the ground therefor. In all cases of doubt and when required by the applicant the Registrar shall refer the application to court. By these provisions and the right of the judgment debtor is jealously guarded by the necessary provisions in the Civil Procedure Code and also in the Original Side Rules.
12. Now let us consider the case of the appellant. The appellant/decree holder had sought execution in the High court, subsequent to the transmission of the decree to the Sub Court, Poonammalle and the same has been numbered in EP. No. 80 of 1985 and pending. The defence taken by the defendant is that the plaintiff/decree holder is not entitled to have such an execution without the permission of the High Court which passed the decree. Neither the Civil Procedure Code nor the Original Side Rules of the High Court contemplate any such permission of the notice to the judgment debtor for ordering a petition for simultaneous execution. In the case of Venkatarami Reddy v. Rami Reddy, 1950 (1) MLJ 787, it was held that it is only a notice required under the rule of justice, equity and good conscience that no judicial order shall be passed without giving the party affected an opportunity of being heard, it has been rightly observed that the Civil Procedure Code and the Original Side Rules of the High Court do not contemplate any notice at the time when the decree holder seeks simultaneous execution. But, the Court which passed the decree when it sends to another Court for execution, the certificate is required to be sent by the transferor Court to the transferee court about the satisfaction or non-satisfaction of the decree as contemplated under Rule 6 of Order 21. As it has already been noticed that though the Civil Procedure Code does not contemplate such matters, such notice is required only under the Rule of justice, equity and good conscience.
13. The learned Advocate for the appellants relied upon the decision rendered by the Patna High Court in Radheshyam and Ors. v. Devindra, . In that case a decree was transferred for execution to another Court. It was held that the transferee Court gets jurisdiction to execute the decree to the limits of its jurisdiction to execute the decree its own decrees. The transferor Court is not. however, deprived of all its jurisdiction to execute the decree. The transferor Court still retains jurisdiction to execute the decree except to the extent that jurisdiction to execute the decree has been given to the transferee Court. The Court, which passed the decree, has, therefore, jurisdiction to execute the decree in certain circumstances in spite of the absence of any certificate under Section 41 from the Transferee Court.
14. In the case of Omprakash Judgment Debtor v. Tahera Degam and Ors., , it was held that there is nothing in the Code of Civil Procedure or in any other law which lays down positively that several applications or execution of a decree cannot be filed simultaneously. Unless such a right to apply for execution of a decree in any of the modes permissible by law is not definitely restricted, a bar should not be inferred from the requirements of the contents of an application for execution given in Rule 11(2) of Order 21, for, the bar to a certain legal right should be clearly laid down by statute and is not to be inferred. In a case where it is to be inferred there should be no other conclusion possible except the conclusion that the other provisions necessarily imply that such a bar should come in existence. There is nothing in the provisions of Order 21, Rule 11(2) to lead such an inference.
15. In the case of Bethia Venkanna v. Sait Chunilal Moolchand Registered Firm Kakinada by Managing Partner Chuilal, , it was held that a decree holder is entitled, under law to proceed simultaneously against different judgment debtor for the same amount in execution of his decree and the specific permission of the Court is not required for such a course. There is nothing in the Civil Procedure Code or in any other law, which lays down positively that several applications for execution of a decree cannot be filed simultaneously.
16. In the case of Bhagwan Das v. Gomti Bai and Anr. , the question arose for consideration in that case was whether simultaneous execution is permissible in two Courts, one being the Court to which the decree has been transferred for execution under Section 39, CPC and the other being the original Court, which passed the decree and it was answered that the application for execution made in the transferor Court was not barred by any provisions of law and was therefore maintainable.
17. All the decisions referred to above would positively indicate that there in no specific provision of law which requires permission to be obtained from the Court for the simultaneous execution of the decree by the decree holder before the Court which passed the decree and also before the Court to which the decree has been transferred. The notice of the execution petition is stated in Order 21, Rule 22, CPC and Order 39, Rule 12 of the Original Side Rules of the High Court and they do not also prescribe any notice to be sent to the defendant/judgment debtor. But, however, the learned single Judge relied upon the decision rendered by this Court in the case of Venkatarami Reddy v. Rami Reddy, 1950 (1) MLJ 787 and came to the conclusion that the appellant/decree holders, who have filed the present execution petitions in the High Court, have not obtained permission of this Court i.e. in filing an application and issue of notice to the defendant giving them an opportunity of being heard of simultaneous execution of the decree in this Court as well as in the Sub Court, Poonamallee and as such, the execution petitions filed by the appellant/defence holders suffer from serious legal infirmity and therefore, hold that, the execution petitions are not maintainable. We wish to state that when the decree is passed, it is the obligation on the part of the judgment debtor to satisfy the decree and if not satisfied, the decree holder is entitled to file an application for execution and notice of the execution petition is contemplated under Order 21, Rule 22, CPC and Order 39, Rule 12 of the Original Side Rules of the High Court and when the execution petition does not, fall under those provisions, no notice is necessarily to be sent to the judgment debtor. In view of the decisions relied upon by the appellants referred to above and also in the absence of any requirement either in the Civil Procedure Code or in the Original Side Rules of the High Court, which do not mandate obtaining any such permission, we are unable to agree with the views of the learned single Judge and we hold that there is no necessity for the plaintiff/decree holder to obtain such permission from this Court for simultaneous execution and that therefore, the order passed by the learned single Judge is liable to be set aside and accordingly, it is set aside.
18. In the result, the appeals are allowed. No costs. Consequently, connected CMPs are closed.