Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 1000 (KAR)

R. K. Sardar v. Jaffar Sab

2017-07-04

B.VEERAPPA

body2017
ORDER : B. VEERAPPA, J. 1. These writ petitions are filed by the judgment-debtor against the order dated 31st January, 2017 by which the Executing Court overruled the objections raised by the judgment writer with regard to maintainability and held that the execution petition filed is maintainable before the Court at Davangere and the decree-holder was given liberty to proceed with the case and the order dated 10.3.2017 rejecting I.A. No.2 filed under section 151 of Code of Civil Procedure, 1908 ('CPC' for short) for review of the order dated 31.1.2017. 2. The respondents/plaintiffs filed O.S. No.62/2011 against the present judgment-debtor/defendant for recovery of a sum of Rs. 10,00,000/-. It is the case of the respondents/plaintiffs that the defendant has purchased the suit schedule property in public auction held by the Union Bank of India, Davangere and negotiated to sell the suit schedule property and the plaintiffs keeping in faith in defendant negotiated to purchase suit schedule property from the defendant. The sale negotiation was held on 2.1.2008 and the sale price of the suit schedule property was fixed at Rs. 36,75,000/- and the plaintiff accepted to purchase the suit schedule property and paid advance amount of Rs. 10,00,000/- to the defendant on 2.1.2008 and the sale agreement executed by the defendant in favour of the plaintiff on 16.1.2008 at Chitradurga. It is further contended that in spite of repeated requests, the defendant has not executed the sale deed on the ground that the Union Bank of India has not granted permission to execute the sale deed. Therefore the plaintiffs filed the suit. The defendant filed the written statement and denied the entire plaint averments. After contest, the trial Court by the judgment & decree dated 25.1.2016 decreed the suit with costs and directed the defendant to refund earnest amount of Rs. 10,00,000/- to the plaintiffs with interest at the rate of 9% per annum from the date of the suit till realization of entire decretal amount. 3. Against the said judgment & decree, defendant filed RFA No.882/2016 before this Court. This Court while admitting the appeal, stayed the impugned judgment & decree subject to deposit of 50% of the decretal amount within four weeks from the date of the order. Admittedly the interim order was not complied by the defendant. 3. Against the said judgment & decree, defendant filed RFA No.882/2016 before this Court. This Court while admitting the appeal, stayed the impugned judgment & decree subject to deposit of 50% of the decretal amount within four weeks from the date of the order. Admittedly the interim order was not complied by the defendant. Therefore the interim order shall not come in the way to protect the defendant since he has failed to comply the conditional order. The interim order automatically stood vacated since it was a conditional order. 4. Thereafter the decree holders/plaintiffs filed Execution No.79/2016 before the Prl. Senior Civil Judge & CJM, Davangere to execute the decree. The judgment-debtor/defendant filed objections to the said Execution Petition contending that the Executing Court at Davangere has no jurisdiction to proceed with the execution and raised maintainability of the execution petition at Davangere. The Executing Court by its order dated 31.1.2017 overruled the objections raised by the judgment-debtor/defendant and held that the execution petition filed in the Court of Prl. Senior Civil Judge, Davangere is maintainable and reserved liberty to the decree-holders/plaintiffs to proceed with the case. 5. Thereafter the judgment-debtor/defendant filed I.A. No.2 under section 151 of the Code of Civil Procedure, 1908 to review the order dated 31.1.2017 contending that there is an error apparent on the face of the record and the trial Court has not considered the fact of insertion of sub-section (4) of section 39 of CPC by Act No.22/2002 w.e.f 1.7.2002. The said application was resisted by the decree-holders/plaintiffs. Ultimately the trial Court by the order dated 10.3.2017 rejected the said application. Hence the present writ petitions are filed by the judgment-debtor/defendant. 6. I have heard the learned counsel for the parties to the lis. 7. Sri Giridhar, learned counsel for the petitioner/judgment-debtor contended that the impugned orders dated 31.1.2017 and 10.3.2017 passed by the trial Court as per Annexures D and G regarding maintainability and review of the order, are erroneous and contrary to the material on record. He further contended that in view of the insertion of sub-section (4) of section 39 of CPC, the Executing Court at Davangere has no jurisdiction and therefore the Execution Petition itself was not maintainable. In spite of such objection raised, the Executing Court without considering the provisions of sub-section (4) of section 39 of CPC has proceeded to hold that the execution petition was maintainable. In spite of such objection raised, the Executing Court without considering the provisions of sub-section (4) of section 39 of CPC has proceeded to hold that the execution petition was maintainable. He further contended that since the Executing Court has proceeded without considering the provisions of sub-section (4) of section 39 of CPC, an application came to be filed to review the order. In spite of the same, the Court below rejected the said application. The impugned orders passed by the Court below are contrary to the provisions of sub-section (4) of section 39 of CPC. Therefore he sought to allow the present writ petitions and quash the impugned orders passed by the Court below regarding maintainability. 8. Per contra, Sri. Mohammed Shefi, learned counsel for the respondents/decree-holders-plaintiffs submits that the suit was filed at Davanagere and after contest, the suit came to be decreed on 25.1.2016. Against the said judgment & decree passed by the trial Court, the judgment debtor/defendant filed RFA No.882/2016 before this Court and this Court while admitting the appeal, stayed the Judgment & decree of the trial Court subject to deposit of 50% of the decretal amount within four weeks from the date of the order. But, the judgment-debtor has not complied the conditional order and therefore the interim order of stay automatically stood vacated. Inspite of the same, the judgment-debtor proceeded to raise objections before the Executing Court and therefore the Executing Court was justified in overruling the objections and rejecting the application filed for reviewing the order dated 31.1.2017. Therefore learned counsel for the decree-holders/plaintiffs sought to dismiss the present writ petitions. 9. In view of the rival contentions urged by the learned counsel for the parties to the lis, the only point that arises for consideration in the present writ petitions is: "Whether the Executing Court at Davangere is justified in passing the impugned orders dated 31.1.2017 and 10.3.2017 overruling the objections raised by the judgment writer/defendant with regard to maintainability of the execution petition filed at Davangere, in the facts and circumstances of the case" 10. It is an undisputed fact that on the basis of the agreement to sell dated 16.1.2008 the plaintiffs filed suit for recovery of refund of advance amount with interest. It is an undisputed fact that on the basis of the agreement to sell dated 16.1.2008 the plaintiffs filed suit for recovery of refund of advance amount with interest. After contest, the trial Court recorded a finding that the plaintiffs proved that the defendant agreed to sell the suit schedule property for a sum of Rs. 36,75,000/- and executed agreement of sale dated 16.1.2008 by receiving advance sale consideration of Rs. 10,00,000/- and the suit was filed within time and the plaintiffs were entitled for the relief sought for. Accordingly, the trial Court by the judgment & decree dated 25.1.2016 decreed the suit and directed the defendant to refund earnest amount of Rs. 10,00,000/- to the plaintiffs with interest at the rate of 9% per annum from the date of the suit till realisation of the entire decretal amount. 11. It is also not in dispute that against the said judgment and decree, the judgment-debtor/defendant filed RFA No.882/2016 before this Court and this Court while admitting the appeal on 15.7.2016, has stayed the judgment & decree of the trial Court subject to deposit of 50% of the decretal amount within four weeks from the date of the order. It is also not in dispute that the judgment-debtor/defendant has not complied the interim order passed by this Court in RFA No.882/2016. Therefore there is no impediment for the decree-holders/plaintiffs to execute the decree. Accordingly, the decree-holders filed Execution Petition No.79/2016 before the Prl. Senior Civil Judge, Davangere to execute the decree as per Annexure-A for Rs. 15,32,250/-. It is also not in dispute that the judgment-debtor/defendant filed objections to the said execution petition and specifically contended that the execution petition filed against him at Davangere is not maintainable in view of the provisions of section 39 of the Code of Civil Procedure, 1908 and the Court at Davangere has no territorial jurisdiction to try the execution petition since judgment-debtor is a resident of Chitradurga and moveable and immoveable properties are also not in Davangere jurisdiction. It is also brought to the notice of the Executing Court that this Court in RFA No.882/2016 has stayed the judgment & decree of the trial Court subject to deposit of 50% of the decretal amount within four weeks and even otherwise, the execution petition is not maintainable. 12. It is also brought to the notice of the Executing Court that this Court in RFA No.882/2016 has stayed the judgment & decree of the trial Court subject to deposit of 50% of the decretal amount within four weeks and even otherwise, the execution petition is not maintainable. 12. The Executing Court while considering the Execution Petition and the objections in the impugned order dated 31.1.2017 very cleverly extracted the provisions of section 39 of CPC excluding sub-section (4) of Section 39 and proceeded to hold that the objection raised by the judgment-debtor/defendant are overruled and the execution petition is not maintainable. The Executing Court failed to notice sub-section (4) of section 39 of CPC which was inserted by Act No.22 of 2002 w.e.f. 1.7.2002. The said sub-section reads as under: Section 39 (4): 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. 13. It is not in dispute that the petitioner/judgment-debtor-defendant is resident of Chitradurga. Though the suit was filed at Davangere at the inception, it came to be decreed on 25.1.2016. Sub-section (4) of section 39 of CPC clearly prohibits execution of decree against any person or property outside the local limits of its jurisdiction. Admittedly, the judgment-debtor/defendant is a resident of Chitradurga. The Executing Court at Davangere cannot execute the decree passed against the judgment-debtor/defendant, who is a resident of Chitradurga though suit was decreed at Davangere in view of the provisions of sub-section (4) of section 39 of Code of Civil Procedure,1908. 14. The Hon'ble Supreme Court while considering the provisions of sub-section (4) of section 39 of CPC in the case of Salem Advocates Bar Association v. Union of India, reported in (2005) 6 SCC 344 : ( AIR 2005 SC 3353 ) held at paragraphs 22, 23 and 24 as under: 22. Section 39(1) of the Code provides that the Court which passed a decree may, on the application of the decree-holder send it for execution to another court of competent jurisdiction. By Act 22 of 2002, Section 39(4) has been inserted providing that nothing in the 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. By Act 22 of 2002, Section 39(4) has been inserted providing that nothing in the 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. The question is whether this newly added provision prohibits the executing court from executing a decree against a person or property outside its jurisdiction and whether this provision overrides Order 21, Rule 3 and Order 21, Rule 48 or whether these provisions continue to be an exception to Section 39(4) as was the legal position before the amendment. 23. Order 21, Rule 3 provides that where immoveable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more courts, any one of such courts may attach and sell the entire estate or tenure. Likewise, under Order 21, Rule 48 , attachment of salary of a Government servant, Railway servant or servant of local authority can be made by the court whether the judgment-debtor or the disbursing officer is or is not within the local limits of the court's jurisdiction. 24. Section 39 does not authorise the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance with the conditions stipulated in those provisions. Thus, the provisions, such as, Order 21, Rule 3 or Order 21, Rule 48 which provide differently, would not be effected by Section 39(4) of the Code. 15. The Hon'ble Supreme Court in the case of Mohit Bhargava v. Bharat Bhushan Bhargava, reported in (2007) 4 SCC 795 : ( AIR 2007 SC 1717 ) while considering the provisions of sub-section (4) of section 39 of CPC as inserted by Act No.22/2002 w.e.f. 1.7.2002, held at paragraphs 7 and 8 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. 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. 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 immoveable 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 immoveable 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. 16. 16. In view of the amended provisions of sub-section (4) of section 39 of CPC and the dictums of the Hon'ble Supreme Court stated supra, it is clear that the Executing Court at Davangere has no jurisdiction to execute the decree since the petitioner/judgment-debtor is a resident of Chitradurga as mentioned in the cause title of the original suit, decree, execution petition as well as in the present writ petitions. 17. At this stage, Sri Mohamed Shefi, learned counsel for the respondents/decree-holders fairly submits that in view of the provisions of sub-section (4) of section 39 of CPC and the dictums of the Hon'ble Supreme Court stated supra, the respondents/decree-holders may be permitted to file Execution Petition at Chitradurga. 18. Sri. Giridhar, learned counsel for the petitioner/judgment-debtor submits that the Court at Davangere has no jurisdiction to execute the decree since the judgment-debtor is a resident of Chitradurga, but the decree-holders can file the execution petition at Chitradurga. 19. The said fair submissions made by the learned counsel for the parties are placed on record. 20. For the reasons stated above, the Executing Court is not justified in overruling the objections filed by the petitioner/judgment-debtor with regard to maintainability of the Execution Petition and rejecting the application for review of the earlier order. Therefore the point raised in the writ petitions is answered in the negative holding that the Executing Court at Davangere was not justified in passing the impugned orders dated 31.1.2017 and 10.3. 2017 overruling the objections raised by the judgment-debtor/defendant with regard to maintainability of the execution petition filed at Davangere, in the facts and circumstances of the case. 21. In view of the above, writ petitions are allowed. The impugned order dated 31.1.2017 vide Annexure-D overruling the objections of the petitioner/judgment-debtor as well as the order dated 10.3.2017 vide Annexure-G rejecting I.A. No.2 for review of the earlier order dated 31.1.2017 are hereby quashed. In view of the same, the Execution No.79/2016 on the file of the Prl. Senior Civil Judge, Davangere is closed. Since the petitioner/judgment-debtor has not complied the interim order passed by this Court dated 15.7.2016 made in RFA No.882/2016, there is no impediment to proceed with the judgment & decree passed by the trial Court and therefore liberty is reserved to the respondents/decree-holders to execute the decree by filing fresh execution petition before the jurisdictional Court at Chitradurga. Since the petitioner/judgment-debtor has not complied the interim order passed by this Court dated 15.7.2016 made in RFA No.882/2016, there is no impediment to proceed with the judgment & decree passed by the trial Court and therefore liberty is reserved to the respondents/decree-holders to execute the decree by filing fresh execution petition before the jurisdictional Court at Chitradurga. If such Execution Petition is filed before the jurisdictional Court at Chitradurga where the petitioner/ judgment-debtor is residing, the petitioner/judgment-Debtor shall not raise any objections with regard to the maintainability of the Execution Petition. The executing Court at Chitradurga shall proceed with the Execution Petition in accordance with law.