Pearey Lal And Sons (Pvt.) Ltd. vs Jamuna Properties (P) Ltd. And ...
2004 Latest Caselaw 25 Del

ORDER

Manmohan Sarin, J.

1. By Notification No. L-17015/1/2002-Jus. dated 18th July, 2003, the pecuniary jurisdiction of the Original Side of Delhi High Court has been increased from Rs. 5 lakhs to Rs. 20 lakhs.

2. The questions falling for consideration in this Execution Petition are :--

(i) Whether as a result of the increase in pecuniary jurisdiction, the pending execution applications are liable to be transferred to the District Courts or not?

(ii) In case, the answer to the first question is in the negative, whether the Court may suo motu in the exercise of powers under Sub-section (2) of Section 39, CPC can send the petition for execution to a subordinate Court of competent jurisdiction independently of the existence of circumstances specified in Clauses (a) to (d) of Sub-section (2) of Section 39, CPC? ,

3. The suit had been filed for recovery of Rs. 14,38,480/- (Rupees fourteen lakhs thirty eight thousand and four hundred eighty only) against the defendants. Plaintiff had valued the suit for jurisdictional purposes at the above value and paid Rs. 16,398/- as Court-fee. The suit had been decreed for a sum of Rs. 14,38,480/- with defendant No. 2 having joint and several liability for payment of Rs. 10,74,480/-. Pendente lite and future interest at 12% was also granted. The present Execution Petition seeking execution of the above decree dated 26-2-2003, was filed on 8 8-2002.

4. Notices were issued to the Judgment Debtors. Judgment Debtor No. 2-Shri R. C. Jain, is stated to have expired on 27-11-2001. Son of the deceased judgment-debtor No. 2 Shri Raj Kr. Jain moved EA. No. 502/2002 averring that the Decree Holder knew about the demise of late Shri R. C. Jain but had not imp leaded the legal representatives. It was claimed that Shri R. C. Jain had died leaving behind liabilities of more than Rs. 6 crores and the applicant as well as the other legal representatives did not derive any benefit from the estate.

5. Notice of the application was issued to the decree holder. Further the Court vide Orders dated 24th March, 2003, and 16th July, 2003, directed Shri Raj Kr. Jain, who is stated to be the Managing Director of judgment debtor No. 1 to file affidavit giving particulars of the assets of judgment debtor No. 1. Upon filing of the said affidavit, the Court directed Mr. Raj Kr. Jain to file affidavit with respect to the assets of his mother as well. It is at this juncture, that the question of transfer of the Execution Petition has arisen.

6. The net position which emerges is that the Suit had been tried in and decreed by the High Court. Objection to the Execution application has been filed by the legal representatives of judgment debtor No, 2, who expired on 27-11-2001, i.e. even before passing of the decree. Legal representatives have claimed in the objection application that the deceased-judgment debtor No. 2, has left behind liabilities, which far exceed the estate.

7. Coming to the question of transfer of Execution application on revision of pecuniary jurisdiction or the Court ceasing to have jurisdiction, reference is invited to a decision of Division Bench of this Court in Gulab Chand Sharma v. Saraswati Devi reported at . The Division Bench considered the provisions of Sections 37, 38 and 39 of the Code of Civil Procedure. For facility of reference, provisions of Sections 37, 38 and 39, CPC, are reproduced hereunder :--

37. Definition of Court which passed a decree.-- The expression "Court which passed a decree", or words to the 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

(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.)

38. 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.

39. Transfer of decree.-- (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),--

(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 no 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).

((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.)

8. The Court considering the effect of Section 37(a), CPC, held that the expression "where the Court of first instance has ceased to exist" without doubt envisages "the abolition or total extinguishment of the Court which passed the decree". Further, to attract first part of Clause (b) of Section 37, what is required is the complete abolition of the Court which passed the decree and not mere alteration in its pecuniary or territorial jurisdiction. The expression "where the Court of first Instance has ceased to have jurisdiction to execute the decree" as envisaged by second part of Clause (b) of Section 37, obviously refers to such a decree where the Court loses jurisdiction to execute the decree according to its tenor. Mr. Valmiki Mehta, learned senior counsel for decree holder submits that in view of the above dictum of the Division Bench, there can be no doubt that the Court which passed the decree, in this case being the High Court, does not lose the jurisdiction to execute the same because of the increase in pecuniary jurisdiction.

In view of the judgment in the case of Gulab Chand Sharma, (supra) it cannot be said that this Court has lost its pecuniary jurisdiction to execute the decree and all pending executions are automatically liable to be transferred to the District Courts. The first question is accordingly answered in the negative.

9. The next question to be considered is whether the Court may suo motu in appropriate cases transfer the decree under Sub-section (2) of Section 39, CPC to a subordinate Court for execution.

Section 38 provides that the decree may be executed by the Court which passed it or by the Court to which it is sent for execution. Sub-section (1) of Section 39, CPC sets out the conditions in which a decree may be transferred. Clause (a) provides for transfer in case the judgment-debtor resides or carries on business within the jurisdiction of the other Court. Clause (b) provides for a situation where the judgment-debtor does not have sufficient property within the jurisdiction of the Court which passed the decree. Clause (c) contemplates a situation where the decree is for sale or delivery of immovable property situated outside the jurisdiction of the Court which passed the decree. Clause (d) provides that where the Court transfers the decree for other reasons, the same be recorded in writing. It would be seen from the foregoing that transfer is contemplated on the existence of any of the specified circumstances in Clauses (a), (b), (c) and (d). Clause (d) enables the transfer for any other reason to be recorded in writing.

10. The question is whether Sub-section (2) of Section 39, CPC, providing for suo motu transfer is an independent one or is circumscribed by the contingencies as set out in Sub-clauses (a) to (d) of Sub-section (1) of Section 39. In my view, the language of Sub-section (2) does not contemplate any such fetter. While Sub-section (1) deals with transfer to another competent Court having jurisdiction or assets being located within its Jurisdiction, Sub-section (2) empowers the Court passing the decree of its own motion to transfer it for execution to any subordinate Court of competent Jurisdiction. Sub-section (2) confers a suo motu power to assign a decree for execution of its own motion to any subordinate Court. The exercise of the power under Sub-section (2) of Section 39, CPC, to send the decree for execution to a subordinate Court can be exercised without meeting the requirements of Sub-clauses (a) to (d) under Sub-section (1) of Section 39, CPC. The expression used in Sub-section (2) of Section 39, CPC is "to any subordinate Court for execution" in contradistinction to "another Court of competent jurisdiction", as used in Sub-section (1) of Section 39, CPC. Power under Sub-section (2) of Section 39 can be exercised for administrative reasons to ensure expedition in execution of the decree, etc. In case of Delhi, for instance the Civil Nazarat is located at the District Courts. The warrants for possession and warrants for sale or attachment of properties, etc. are executed through the Administrative Civil Judge. In such circumstances, if the Court may find that the decree can be conveniently and expeditiously executed by the District Court, it may in the exercise of powers under Sub-section (2) of section 39, IPC send the decree for execution to the District Courts. Accordingly, it is held that the exercise of the powers to transfer under Sub-section (2) of Section 39, CPC can be exercised independently of the powers under Sub-section (1) of Section 39, CPC.

11. Coming to the facts of the present case and considering the nature of issues arising including the decree holder having not taken steps to bring the legal representatives on record prior to the suit being decreed as also the claim of the legal representatives that they are not the beneficiaries of any estate since the liabilities of Judgment debtor No. 2 are far in excess of the assets, I am of the view that this execution petition should be heard and decided by this Court. It is not a case where the powers under Sub-section (2) of Section 39 deserve to be exercised, at this stage. Ordered accordingly.