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2000 DIGILAW 1554 (RAJ)

Jaipur Metals & Electricals Ltd. v. M/s Klen & Marshall Manufacturers and Exporters Ltd.

2000-12-22

R.R.YADAV

body2000
JUDGMENT 1. :- By filing the instant writ petition the petitioner-Jaipur Metals & Electricals Limited questions the execution order dated 23.11.2000 passed by Madras High Court, a copy whereof is filed and marked as Annex.5 to the writ petition. 2. It is submitted by the learned counsel for the petitioner Shri C.K. Garg, Senior Advocate assisted by Shri G.K. Garg and Shri R.K. Agarwal that the order impugned dated 23.11.2000 (Annex.5 to the writ petition) is not executable by Madras High Court because the machineries/goods more fully described in Schedule B and lying/kept in factory/premise of the petitioner near Railway Station, Jaipur-302006 (Rajasthan) India or elsewhere to be sold by Advocate Commissioner assisted by Police Force are situated within the territories in relation to which this Court exercises its jurisdiction. Learned counsel for the petitioner invited my attention to the provisions envisaged under section 36 Civil Procedure Code which provides that the provisions of this court relating to execution of the decree including provisions relating to payment under decree shall so far as they are applicable, be deemed to apply to the execution of orders including payment under an order. The learned counsel for the petitioner also invited my attention towards the provisions of Sick Industrial Companies (Special Provisions) Act and submitted that no proceedings against the petitioner company can be initiated and even if initiated these proceedings are to be suspended under section 22 of the said Act. In support of his aforesaid contention the learned counsel for the petitioner placed reliance on a decision rendered by Hon'ble Supreme Court in case of Binod Mills Co. Ltd., Ujjain M.P.) Vs. Suresh Chandra Mahaveer Prasad Mantri, Bombay, reported in 1987(3) SCC 99 . 3. A conjoint reading of sections 36 and 38 of Civil Procedure Code reveal that a decree or order may be executed either by the Court which passed it or by the Court to which it is sent for execution. 4. In the present case the learned counsel for the petitioner failed to demonstrate that the order passed by Madras High Court in case on hand has been transferred to this Court for execution. 4. In the present case the learned counsel for the petitioner failed to demonstrate that the order passed by Madras High Court in case on hand has been transferred to this Court for execution. Therefore, in absence of an order from Madras High Court transferring the execution proceedings to this Court for execution only Madras High Court has jurisdiction to execute its order and if the petitioner company is aggrieved on the ground of violation of any provision of Sick Industrial Company (Special Provisions) Act, it can raise such objection only before Madras High Court not before this Court. I am of the view that if the aforesaid contention of the learned counsel for the petitioner is accepted it would lead to juridical anarchy. 5. The decision rendered by Supreme Court in the case of Binod Mills Co. Ltd. (supra) cited by the learned counsel for the petitioner in support of his aforesaid contention is not applicable to the facts and circumstances of the present case for the simple reason that in that case the decree was transferred for execution from Bombay High Court to the District Judge, Ujjain (M.P.) whereas in the present case the order for execution has not been transferred either to any District Judge in State of Rajasthan or to this Court. In the case of Binod Mills Co. Ltd. (supra) the decree was transferred from Bombay High Court to District Judge, Ujjain (M.P.), therefore, the refusal of District Judge, Ujjain & Madhya Pradesh High Court to entertain the plea under section 5 of Madhya Pradesh Sahayata Upkram (Vishesh Upbandh) Adhiniyam, 1978 providing suspension of decree under the garb of going behind the decree the order passed by District Judge, Ujjain and affirmed by Madhya Pradesh High Court was set aside by Apex Court and the special appeal was allowed whereas in the present case the Madras High Court instead of transferring its order for execution to this Court or any District Judge of Rajasthan itself has started to execute its order. Thus, the facts and circumstances of the case of Binod Mills Co. Ltd. (supra) are not analogous to be facts and circumstances of the present case. As a matter of fact the facts and circumstances of the present case are distinguishable to the facts and circumstances of Binod Mills Co. Ltd. (supra). 6. Thus, the facts and circumstances of the case of Binod Mills Co. Ltd. (supra) are not analogous to be facts and circumstances of the present case. As a matter of fact the facts and circumstances of the present case are distinguishable to the facts and circumstances of Binod Mills Co. Ltd. (supra). 6. In view of the aforesaid facts and circumstances I decline to issue a prerogative writ making execution proceedings initiated by the Madras High Court to be ineffective. As I am dismissing the present writ petition on the ground of inherent lack of jurisdiction, therefore, I do not propose to burden this judgment with other ancillary arguments raised by the learned counsel for the petitioner in the light of Sick Industrial Companies (Special Provisions) Act. Consequently, it is hereby dismissed in limine for the reasons stated hereinabove. Petition dismissed. *******