Delhi High Court
44, Noida Infratech (Two) Private ... vs Sanwariya Gas Limited & Ors on 30 October, 2017
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.P. 504/2015 & Ex.Appl.(OS) 1193-1194/2015, 217/2016,
377/2016, 449/2016
44, NOIDA INFRATECH (TWO)
PRIVATE LIMITED ..... Decree Holder
Through Mr.Suhail Dutt, Sr.Advocate
with Mr.Abhishek Seth,
Mr.Kushagra Sah and Mr.Azhar
Alam, Advocates.
versus
SANWARIYA GAS LIMITED & ORS ..... Judgement Debtors
Through Mr.Ratan K.Singh with
Mr.Abhishek Iyer and
Mr.Prabodh Shukla, Advocates.
% Date of Decision: 30th October, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral)
1. On 30th August, 2017, this Court had passed the following
order:-
" Learned counsel for both the parties have drawn this
Court's attention to the order dated 29th August, 2016,
whereby another execution petition being Ex.P.No.117/2016
between the same parties has been transferred to a Court
situated at Bullandshehar, U.P. for further proceedings.
This Court is prima facie of the opinion that in accordance
with the aforesaid order, even the present execution petition
along with the interim order in subsistence, would have to be
transferred to Bullandshehar, U.P.
Learned counsel for both the parties pray for some time to
address arguments on the said issue.
In the interest of justice, re-notify on 30th October, 2017.
Interim order to continue."
2. Today Mr.Suhail Dutt, learned senior counsel for the decree
holder submits that this Court should first decide the objections to the
execution petition and only thereafter transfer the decree in question to
the Court situated at Bullandshehar, U.P.
3. Section 39 (4) CPC reads as under:-
"39(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."
4. The Apex Court in Mohit Bhargava Vs.Bharat Bhushan
Bhargava & Ors. (2007) 4 SCC 795 has held as under:-
"7. There cannot be any dispute over the proposition that
the court which passed the decree is entitled to execute the
decree. This is clear from Section 38 of the Code which
provides that a decree may be executed either by the court
which passed it or by the court to which it is sent for
execution. Section 42 of the Code indicates that the transferee
court to which the decree is transferred for execution will
have the same powers in executing that decree as if it had
been passed by itself. A decree could be executed by the court
which passed the decree so long as it is confined to the assets
within its own jurisdiction or as authorised by Order 21 Rule
3 or Order 21 Rule 48 of the Code or the judgment-debtor is
within its jurisdiction, if it is a decree for personal obedience
by the judgment-debtor. But when the property sought to be
proceeded against, is outside the jurisdiction of the court
which passed the decree acting as the executing court, there
was a conflict of views earlier, some courts taking the view
that the court which passed the decree and which is
approached for execution cannot proceed with execution but
could only transmit the decree to the court having jurisdiction
over the property and some other courts taking the view that
it is a matter of discretion for the executing court and it could
either proceed with the execution or send the decree for
execution to another court. But this conflict was set at rest by
Amendment Act 22 of 2002 with effect from 1-7-2002, by
adopting the position that if the execution is sought to be
proceeded against any person or property outside the local
limits of the jurisdiction of the executing court, nothing in
Section 39 of the Code shall be deemed to authorise the court
to proceed with the execution. In the light of this, it may not
be possible to accept the contention that it is a matter of
discretion for the court either to proceed with the execution of
the decree or to transfer it for execution to the court within
the jurisdiction of which the property is situate.
8. Pending a suit, the court approached with the suit, may
have jurisdiction to order attachment of a property even
outside its jurisdiction. In execution, under Order 21 Rule 54
of the Code, it may also have jurisdiction to order attachment
of the property prohibiting the judgment-debtor from
transferring or charging the property in any way when it
exercises its jurisdiction over the judgment-debtor though not
over the property itself. It could in such a case issue a precept
in terms of Section 46 of the Code and thereupon, the court to
which the precept is sent, has to actually attach the property
in the manner prescribed. Section 136 of the Code provides
for an order of attachment in respect of a property outside the
jurisdiction of the court and sending the order of attachment
to the District Court within whose local limits the property
sought to be attached is situate, as provided for therein. But
Section 136 clearly excludes execution of decrees from within
its purview. An execution against immovable property lying
outside the jurisdiction of the executing court is possible in
terms of Order 21 Rule 3 of the Code which governs a case
where the particular item of immovable property, forms one
estate or tenure situate within the local limits of jurisdiction
of two or more courts, and one of those courts is approached
for execution of the decree against that property. In a case
where Order 21 Rule 3 has no application, the position seems
to be that if a decree-holder wants to proceed against a
property situate outside the jurisdiction of the court which
passed the decree, he has to get the decree transferred to the
appropriate court for execution on moving the executing
court in that behalf. Whatever doubts there might have been
earlier on this question, must be taken to have been resolved
by the introduction of sub-section (4) of Section 39 of the
Code which is a mandate to the executing court to desist from
proceeding against a property situate outside its jurisdiction,
unless it be a case coming under Order 21 Rule 3 of the
Code.
(emphasis supplied)
5. Keeping in view the aforesaid mandate of law as well as the fact
that the properties of the judgment debtors are situated in U.P. and by
way of order dated 29th August, 2016 passed by a Coordinate Bench of
this Court in Ex.P.No.117/2016 between the same parties, another
decree has been transferred to the Court situated at Bullandshehar,
U.P. for further proceedings, this Court deems it appropriate to issue a
transfer certificate in favour of the decree holder, transferring the
present petition to the competent court situated at Bullandshehar, U.P.
for further proceedings.
6. However, the interim order dated 11th December, 2015 shall
remain in subsistence till the same is modified/varied/set aside by the
competent court in accordance with law.
7. Let a certificate of transfer of the decree along with the
certificate of non-satisfaction of the decree, along with ancillary
documents be issued to the plaintiff/decree holder within a period of
three weeks.
8. The plaintiff/decree holder is granted six weeks to apply for
execution to the concerned Court.
9. At this stage, learned counsel for both the parties pray that the
Court situated at Bullandshehar, U.P. be directed to decide the matter
expeditiously.
10. This Court is of the view that the request made by both the
counsel is reasonable, fair and proper. Accordingly, it is hoped that
the Court situated at Bullandshehar, U.P. shall decide the execution
petition as well as the pending applications as expeditiously as
possible.
MANMOHAN, J
OCTOBER 30, 2017
KA
