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2010 DIGILAW 1016 (KAR)

Shivanna v. Puttaswamaiah

2010-09-21

JAWAD RAHIM

body2010
Judgment :- 1. The decree holder is in revision against the dismissal of E.P.No.1151/2010 as not maintainable in view of Section 39(4) of the amended CPC. 2. Heard. 3. The contextual facts are the petitioner decree holder was successful in obtaining compensation by judgment and award in MVC.No.7496/2007 on 05.02.2010 on the file of Motor Accidents Claims Tribunal, Bangalore SCCH-11, Bangalore. Being entitled to receive Rs.1,80,000/- from the first respondent (Puttaswamaiah), filed execution No.1151/2010 in the Court of the Chief Judge, Small Causes, Bangalore to recover the amount. In the execution petition itself, they showed Puttaswamaiah, the judgment debtor to be the resident of Varadanahalli Village, Kailancha Hobli, Ramanagaram Taluk, Ramanagaram District. The learned judge of the executing Court noticed that the judgment and award in M.V.C.No.7496/2007 was nodoubt passed by the Motor Accident Claims Tribunal, Bangalore (SCCH-11) but the judgment debtor Puttaswamaiah (respondent) in MVC case was not residing within the territorial jurisdiction of the Court of Small Causes at Bangalore. As in the execution petition itself, the judgment debtor was shown to be residing in Ramanagaram taluk, Ramanagaram District, it held that the execution filed in the Court of Small Causes at Bangalore was not maintainable in view of provision of Section 39(4) of the amended CPC, 1908, Consequently, the E.P was dismissed. 4. The petitioner’s counsel has assailed the order impugned on the following grounds: i) The execution Court having noticed that the Judgment Debtor was not residing in its territorial jurisdiction, could not have dismissed the execution petition. It should have returned it for presentation to the Court having jurisdiction. ii) The Court having noticed it has no9t jurisdiction, should have either permitted the decree holder to withdraw the same and present it before the Court having jurisdiction or it could have passed an order permissible under Order VII Rule 10 of CPC. 5. None of these grounds are tenable. The issue has to be examined referring to Section 39(4) (as inserted by Act 22/2002 w.e.f. 01.07.2002). Section 39 reads thus: “Section 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 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. (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. (1) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction. (2) 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. (3) Nothing in this section shall be deemed to authorize the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.” 6. Thus, there should be no entertainable doubt that by virtue of sub section 4, the Court which passed the decree has no jurisdiction to execute such a decree against any person or property outside the local limits of its jurisdiction. 7. Sub section 1 of Section 39 postulates the Court which passed a decree may, on the application of decree holder, send it for execution to another Court of competent jurisdiction. Therefore, it is the decree holder who has to apply to the Court which passed the decree to send it for execution to another Court of competent jurisdiction. The procedure to be followed is engrafted under Rule 6 of Order XXI of the CPC which reads thus: “6. Procedure where court desires that its own decree shall be executed by another court. The procedure to be followed is engrafted under Rule 6 of Order XXI of the CPC which reads thus: “6. Procedure where court desires 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 been 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.” 8. Therefore, the petitioner/decree holder had no escape except to apply to the Court which passed the decree under Rule 6 for transferring it to the Court of competent jurisdiction. The mode and manner of transfer is prescribed under rule of Order XXI and only on compliance of requirement of Rule 6, the decree in question could be transferred to the Court having jurisdiction. On such a transfer, the transferee Court would execute the decree in the manner the decree holder seeks for its enforcement. Therefore, the decree holder had to , in the first instance apply to the Court which passed the decree for transfer of the decree and only upon such transfer of the decree to the Court of competent jurisdiction, the decree holder has to apply to the transferee Court for execution of decree. In the instant case, it clear that the Judgment Debtor Puttaswamaiah was shown to be the resident of Varadanahalli Village, Ramanagaram Taluk and Ramanagaram District coming within the jurisdiction of Additional City Civil Judge, Senior Divn., Ramanagaram Taluk, the Court of competent jurisdiction. Had the petitioner applied to the Court which passed the decree for transfer of the decree as per the procedure prescribed under Rule 6 of Order XXI, the Court which passed the decree would have transferred the decree to Civil Judge, Senior Division, Ramanagaram, Court of competent jurisdiction and not otherwise. 9. Had the petitioner applied to the Court which passed the decree for transfer of the decree as per the procedure prescribed under Rule 6 of Order XXI, the Court which passed the decree would have transferred the decree to Civil Judge, Senior Division, Ramanagaram, Court of competent jurisdiction and not otherwise. 9. Besides, it is seen that the petitioner decree holder invoked Rule 11 of Order XXI and sought recovery of the amount requesting the Court which passed the decree to execute it against the judgment debtor who has not residing within the jurisdiction of that Court. In that view of the matter, the provision of Order VII Rule 10 were not applicable and the Judge of Small Causes Court could not have permitted the decree holder to withdraw the petition and present it to the Court of competent jurisdiction. 10. The impression in the mind of the petitioner that if Court of Small Causes, Bangalore had no jurisdiction, the execution petition should have been returned for presentation to the Court of competent jurisdiction is misconstruing the provision. Those provisions are applicable only for plaints filed under Section 26 read with Order VII Rule 1 of CPC and not to execution proceedings. The contention urged is without understanding the distinction between the return of the plaint and transfer of the decree. The instant case is not a case for return of the plaint for presentation to the Court having competent jurisdiction but it is a case of transfer of the decree to the Court having competent jurisdiction where the judgment debtor resides. 11. In the result, the revision is dismissed. The petitioner decree holder is permitted to resort to right procedure to execute transfer of the decree for its execution.