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2018 DIGILAW 1187 (GAU)

Debobrata Phukan v. Purna Hazarika

2018-08-10

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. M. Sarma, the learned advocate for the petitioner and Mr. B. Chetri, the learned advocate for the respondent No. 1. None appears on call for the respondent No. 3 i.e. State Bank of India. 2. With the consent of the learned advocates for both appearing sides, the revision has been heard at the admission stage. 3. As the facts are similar in both these applications, CRP No. 476/16 is taken up as lead case and the relevant facts are narrated from the said case. 4. The challenge in this application under Article 227 of the Constitution of India is the order dated 23.09.2016, passed by the Court of the learned Munsiff No. 1, Lakhimpur, North Lakhimpur in Money Ex. Case No. 10/2014, thereby rejecting the petition No. 654/16 filed by the petitioner to set aside the order dated 25.05.2016 to deduct a sum of Rs. 8,000/- from his bank account and to dismiss the execution petition. 5. The case of the petitioner in brief is that he is the defendant in Money Suit No. 3/2013 for recovery of a sum of Rs. 1,50,000/- with interest at the rate of 10% p.a., which was filed by the respondent No. 1. It appears that the summons was duly served on the petitioner and he had also engaged an advocate, but did not contest the suit, as such, the said suit was decreed ex parte vide judgment and decree dated 10.12.2013, passed by the learned Munsiff No. 1, North Lakhimpur. 6. The decree was put to execution and the execution case was registered as Money Execution Case No. 10/2014. In the said proceeding, the learned executing Court i.e. Court of Munsiff No. 1, North Lakhimpur, directed the Executive Engineer, Inland Water Transport, Dibrugarh Division to submit bank details of the petitioner. Thereafter, by order dated 25.05.2016, directions were issued to the State Bank of India, Kotaki Pukhuri Branch (also spelt in some places as Keteki Pukhuri Branch) to deduct Rs. 8,000/- per month from the salary of the petitioner. By filing petition on 23.08.2016, the petitioner appeared before the learned executing Court with a prayer, amongst others, to dismiss the proceeding as the decree was sought to be executed beyond territorial jurisdiction of the Court. 8,000/- per month from the salary of the petitioner. By filing petition on 23.08.2016, the petitioner appeared before the learned executing Court with a prayer, amongst others, to dismiss the proceeding as the decree was sought to be executed beyond territorial jurisdiction of the Court. The said petition was dismissed by the impugned order, which is in challenge in this application, i.e. CRP No. 476/2016. 7. The distinguishable facts in CRP No. 477/2016 is that M.S. No. 2/2013, filed by the respondent No. 1 for recovery of a sum of Rs. 1,30,000/- was decreed with 10% interest per annum by the learned Munsiff No. 1, Lakhimpur, North Lakhimpur by judgment and decree dated 10.12.2013. The said decree was put to execution by filing M. Ex. Case No. 11/2014, wherein, by order dated 25.05.2016, the State Bank of India Kotaki Pukhuri Branch was directed to deduct a sum of Rs. 8,000/- every month from the salary of the petitioner. The petitioner by filing a petition on 23.08.2016, the petitioner had prayed for dismissing the said execution proceeding to dismiss the execution case on the ground the execution was taking place beyond territorial jurisdiction, which was rejected by the learned Executing Court, which is the subject matter of this revision i.e. CRP No. 477/2018. 8. Thus, the short question involved is that whether the Court of the learned Munsiff No. 1, North Lakhimpur could have executed the decree at Jorhat, by issuing directions to the State Bank of India, Kotaki Pukhuri Branch, Jorhat to deduct Rs. 8,000/- + Rs. 2000/- per month from the salary of the petitioner? 9. The learned advocate for the petitioner has referred to the provisions of Section 39(4) CPC to project that the learned executing Court could not have directed the bank for attachment and remittance of salary, but it can only be done by suitable directions to the disbursing authority, only if such authority is within the territorial jurisdiction of the learned executing Court. Hence, it is submitted that the impugned order was passed without considering the relevant provisions of law and, as such, the said order was not sustainable, beyond jurisdiction and that the same was liable to be set aside and quashed. 10. Hence, it is submitted that the impugned order was passed without considering the relevant provisions of law and, as such, the said order was not sustainable, beyond jurisdiction and that the same was liable to be set aside and quashed. 10. The learned advocate for the respondent has referred to the affidavit-in-opposition filed by the respondent and has submitted that the learned executing Court had issued notice to the Executive Engineer, IWT, Dibrugarh to submit the pay slip of the respondent, which was sent and the same disclosed that the respondent was drawing salary of Rs. 32,046/- per month. Accordingly, the learned executing Court by order dated 28.07.2015, directed the Drawing & Disbursing Officer (D.D.O.) of the petitioner i.e. Executive Engineer, IWT, Dibrugarh to attach one-fourth of the salary of the petitioner amounting to Rs. 8,000/- per month until full and final realization of the decreetal amount. However, the D.D.O. by letter dated 10.2.16 had reported to the Court that salary and other emoluments were disbursed on-line ECS process by the Dibrugarh Treasury and, as such, he is unable to deduct the instalment amount from the salary of the petitioner. Only thereafter, the learned executing Court had called for the details of savings bank account of the petitioner and then by order dated 25.05.2016, directed the State Bank of India, Kotaki Pukhuri Branch to deduct Rs. 8,000/- per month from the salary of the petitioner. Accordingly, the attachment order was served on the said bank. Thereafter, the petitioner had filed a petition before the learned executing Court, informing the said learned Court that he was a resident of Club Road, RO. & Dist. Jorhat and he was serving as Junior Engineer in IWT, Govt. of Assam under Dibrugarh Division and was posted as S.M.D., Ferry Service, Deknoumukh, Dist. Sivasagar, and prayer was made to set aside the order dated 25.05.2016 and to dismiss the execution petition. It is, thus, submitted that only after exhausting all avenues, the learned executing Court had to direct the bank to deduct a sum of Rs. 8,000/- from the salary till the decreetal amount is realized. 11. The learned advocate for the respondent has submitted that the bar under Section 39(4) CPC cannot stand in the way of proceeding with the execution in the manner as provided under Clause (b) of Sub Rule (b) of Rule 48 of Order XXI CPC. 8,000/- from the salary till the decreetal amount is realized. 11. The learned advocate for the respondent has submitted that the bar under Section 39(4) CPC cannot stand in the way of proceeding with the execution in the manner as provided under Clause (b) of Sub Rule (b) of Rule 48 of Order XXI CPC. In this regard, the learned counsel for the respondent places reliance on the case of (1) Mohit Bhargava Vs. Bharat Bhushan Bhargava, (2007) 4 SCC 795 , and (2) Salem Advocate Bar Association Vs. Union of India, (2005) 6 SCC 344 . 12. At the outset, it would be relevant to quote the provisions of Section 39(4) CPC and Order XXI Rule 48(1)(b) CPC. "Section 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. Order XXI Rule 48(1)(b) CPC (b) where such salary or allowances are to the disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to be disbursed shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time, to be disbursed by the aggregate of the amounts from time to time remitted to the Court." 13. It would be now relevant to quote para-24 of the case of Salem Advocate Association (supra) and para-7 of the case of Mohit Bhargava (supra). "Para-24 of the case of Salem Advocate Association (supra): 24. No other contentions were raised. As already observed, if any difficulties are felt, these can be placed before the Committee constituted hereinabove. The Committee would consider the said difficulties and make necessary suggestions in its report. It is hoped that the amendments now made in the Code of Civil Procedure would help in expeditious disposal of cases in the trial courts and the appellate courts. Para-7 of the case of Mohit Bhargava (supra). 7. Pending a suit, the court approached with the suit, may have jurisdiction to order attachment of a property even outside its jurisdiction. It is hoped that the amendments now made in the Code of Civil Procedure would help in expeditious disposal of cases in the trial courts and the appellate courts. Para-7 of the case of Mohit Bhargava (supra). 7. 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 XXI 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 percept in terms of Section 46 of the Code and thereupon, the court to which the percept 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 XXI 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 XXI 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 XXI Rule 3 of the Code." 14. Thus, it is seen that as the Hon'ble Supreme Court has already settled the matter, the contention raised by the learned advocate for the petitioner the executing Court at North Lakhimpur did not have jurisdiction to issue directions to the State Bank of India, Kotaki Pukhuri, Jorhat as it would amount to execution being carried out beyond the territorial jurisdiction of the Court at North Lakhimpur cannot be accepted, as it would run counter to the ratio laid down by the Hon'ble Supreme Court in both the cases referred herein above. Hence, the question which has arisen for decision in these revisions is answered in the affirmative and against the petitioner by holding that under the facts and circumstances of this case, the learned Executing Court i.e. learned Munsiff No. 1, North Lakhimpur, had the power to execute the decree at Jorhat. 15. Thus, both these applications fail and, as such, the same stands dismissed. The interim order dated 21.12.2016, passed by this Court stands vacated. Hence, it is needless to mention that the effect of the impugned order dated 25.05.2016 passed by the learned Court of Munsiff No. 1, Lakhimpur, North Lakhimpur in M. Ex. Case No. 10/2014 and M. Ex. Case No. 11/2014 would stand revived. 16. The parties are left to bear their own cost. 17. The parties, who are duly represented by their learned advocates, are directed to appear before the learned Court of Munsiff No. 1, Lakhimpur, North Lakhimpur on 22.08.2018 without any further notice of appearance and by producing the certified copy of this order, the parties shall seek further instructions from the said learned Court.