Bombay High Court
Municipal Council, Tumsar ... vs Mrs. Kavita W/O Rajat Warmani on 15 September, 2017
Bench: S.B. Shukre
(Judgment) 1509 CRA 112-2017 & 113-2017 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
CIVIL RIVISION APPLICATION NO. 112/2017
Municipal Council, Tumsar,
through its Chief Officer,
Tumsar, District - Bhandara. APPLICANT
.....VERSUS.....
Sonia W/o Amarjeet Chhabda,
Aged about 50 years, Occu: Business,
R/o. Chhabda Niwas, Joglekar Plots,
Amravati. RESPONDENT
// AND //
CIVIL RIVISION APPLICATION NO. 113/2017
Municipal Council, Tumsar,
through its Chief Officer,
Tumsar, District - Bhandara. APPLICANT
.....VERSUS.....
Mrs. Kavita W/o Rajat Warmani,
Aged about 50 years, Occu: Business,
R/o. Chhabda Niwas, Joglekar Plots,
Amravati. RESPONDENT
In both matters :- Shri M.I. Dhatrak, counsel for applicant.
Shri A.C. Dharmadhikari, counsel for respondent.
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(Judgment) 1509 CRA 112-2017 & 113-2017 2/8
CORAM: S.B. SHUKRE, J.
DATE : SEPTEMBER 15, 2017.
ORAL JUDGMENT :
Heard.
2] Rule. Rule made returnable forthwith.
3] Heard finally by consent.
4] What is an issue in these two Civil Revision
Applications, is the maintainability of the execution
proceedings before Bhandara Court. In the Civil Revision
Application No. 112/2017, decree was passed on
19/12/1997 and in the Civil Revision Application No.
113/2017, decree was passed on 13/04/1998. The
applicant Municipal Corporation Tumsar is the judgment
debtor while respondent in both the Civil Revision
Applications is the decree holder in both of these
decrees. Both these decrees attained finality and
thereafter, in the year 2011, the execution proceedings
were initiated before the Court, which passed the
(Judgment) 1509 CRA 112-2017 & 113-2017 3/8
decrees. That was the Court of Civil Judge (Sr.Dn.)
Amravati. But, as the judgment debtor was residing
within the jurisdiction of Bhandara Court and was also
having property there, both these decrees were
transferred by Amravati Court to Bhandara Court in the
year 2011. They were accompanied by the transfer
certificates as required under the law. An objection to
maintainability of these proceedings before Bhandara
Court was moved by the revision applicant in both these
revision applications. It was two-fold, that the decrees
were not transferred by Amravati Court as required by
Section 38 of the Code of Civil Procedure and that the
decrees had become time barred. After hearing both
sides, Bhandara Court, the Court of Civil Judge (Sr.Dn.),
rejected the objection application. But while doing so,
the executing court at Bhandara only considered the
objection on the point of limitation and did not consider
the objection on the point of non-transfer of the decrees
by Amravati Court.
5] The learned counsel for the applicant submits
that since the objection on the question of non-transfer
(Judgment) 1509 CRA 112-2017 & 113-2017 4/8
of decrees to Bhandara Court by Amravati Court, has not
been considered and there is a doubt about the transfer
of the decrees by adopting the procedure prescribed
under the law, it would be appropriate that the matter is
remanded back to Bhandara Court for a decision afresh
on the application filed in both these cases by the
applicant.
6] Shri Dharmadhikari, learned counsel for the
respondent has a serious objection over remanding back
of both these matters to the executing court at Bhandara
for a decision afresh. He contends that the respondent by
filing additional affidavit on record of this case, has
demonstrated that the proper procedure in transferring
the decrees to Bhandara Court was followed and that
even the transfer certificates were issued by Amravati
Court. He submits that the transfer certificates may not
have been issued exactly as per the Form prescribed in
Appendix-E to Schedule-I, as required under Order 21
Rule 6 of the Code of Civil Procedure, but the bare
perusal of one of the succession certificates would show
that they substantially comply with the requirements of
(Judgment) 1509 CRA 112-2017 & 113-2017 5/8
Order 21 Rule 6, in particular, regarding non-fulfillment
of the decrees and therefore this could be treated only as
an irregularity not affecting the merits of the case.
7] In the case of Mohit Bhargava -Vs- Bharat
Bhushan Bhargava and others, (2007) 4 Supreme
Court Cases 795, relied upon by the learned counsel for
the revision applicant, it has been held by the Hon'ble
Supreme Court that, "A decree can be executed under
Section 38 of C.P.C. only by the Court which passes a
decree or to which the decree is sent by the Court passing
the decree".
8] Same is the view taken by the learned
Division Bench of this Court in the case of The Akola
Janata Commercial Co-operative Bank -Vs- Raju
Natthuji Badhe and others, 2011(3) ALL MR 200.
9] In the present case, it could be seen from the
documents filed on record in this case that the executing
court at Amravati on 25/07/2011 itself, had directed
transfer of the decrees to the Court of Civil Judge
(Judgment) 1509 CRA 112-2017 & 113-2017 6/8
(Sr.Dn.) Bhandara and on that date itself, even transfer
certificates were issued by the Court at Amravati. It is
seen from the counter affidavit filed today on behalf of
the respondent that these documents regarding transfer
of decrees from Amravati Court to Bhandara Court have
been obtained by the respondent from Bhandara Court.
This could not have been possible unless these
documents were already available at Bhandara Court.
So, the inference is that these documents i.e. decrees
under transfer and transfer certificates have been duly
received by Bhandara Court from Amravati Court and so
can be looked into.
10] On going through these documents, one can
find that the procedure as prescribed under Section 38
read with Order 21 Rule 6 of C.P.C. has been
substantially followed in this case though the transfer
certificates are not in the proforma given in Appendix-E
to Schedule-I, C.P.C. But, it is further seen, the basic
requirement of these provisions of law appears to have
been fulfilled while issuing the succession certificates.
The basic requirement lies in the intimation the
(Judgment) 1509 CRA 112-2017 & 113-2017 7/8
transferee court must receive from the transferor court
that till the time of the transfer of the decree in question,
the decree has not been satisfied. This basic purpose
behind issuance of transfer certificate in proforma of
Appendix-E, has been served by the transfer certificates
issued by Amravati Court in this case because it is stated
therein clearly that the decrees have not been satisfied.
Therefore, as held by the Hon'ble Supreme Court in the
case of Mohanlal Goenka -Vs- Benoy Kishna Mukherjee
and others, AIR 1953 SUP. COURT 65, the omission to
use prescribed format for issuing the transfer certificates
in this case, would have to be held as not amounting to
any material irregularity within the meaning of Order 21
R 90 of C.P.C. and as such could not be made a ground
for dismissal of the execution proceedings pending
before Bhandara Court.
11] As regards the argument about remanding
back both the matters to the executing court at Bhandara
for a decision afresh, I must say granting of this prayer
would only be an exercise in futility as the result even
there is not going to be any different, now that it is
(Judgment) 1509 CRA 112-2017 & 113-2017 8/8
known that the procedure required for transferring the
decrees has been substantially followed in the present
case.
12] Thus, I find that there is no merit in both
these revision applications. The applications deserve to
be rejected.
13] The Civil Revision Applications stand
rejected.
14] Parties to bear their own costs.
15] Rule is discharged.
JUDGE
Yenurkar
