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2020 DIGILAW 611 (HP)

Pamwi Tissue Limited v. Raj Laxmi Chemical Industries

2020-09-17

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has, inter alia, prayed for the following reliefs: - (a) "To quash and set aside further proceedings in Case No.3/10 of 2013 titled as Raj Laxmi Chemical Industries Vs. Pamwi Tissue Limited pending before the Ld. Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh (b) To quash and set aside the order dated 16.11.2019 passed by the Ld. Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh as the same is wholly without jurisdiction." 2. The issue involved in this petition filed under Article 227 of the Constitution of India is in a very narrow compass. Respondent before this Court filed a suit for recovery against the petitioner, principal sum in which involved was Rs.1,15,10,012.11. The suit stood decreed by the learned Court at Pune for principal amount alongwith interest @24%. For the purpose of execution of the said decree, the Decree Holder approached the Court at Pune and as the property was situated within the territorial jurisdiction of the Court in issue at Nalagarh, execution petition was accordingly transferred under Sub-Section 3 of Section 39 of the Code of Civil Procedure to the Court of Senior Civil Judge, Nalagarh. The Court of Senior Civil Judge, Nalagarh, on 16.11.2019 passed the following order:- "Case file taken up today for effective hearing as has been listed vide office order dated 14.10.2019. No report as to issue warrant of auction has been made. Civil Ahlmad is warned and directed to be careful in future. Let, fresh warrant of auction be issued for sale of attached property of JD for realization of decretal amount with up to date interest in the following manner on old PF:- Proclamation on 12.12.2019 Sale on 26.12.2019 Report on 20.1.2020." 3. Said order stands assailed by the Judgment Debtor before this Court with further prayer to quash the execution proceedings itself so entertained by the learned Court below. 4. Said order stands assailed by the Judgment Debtor before this Court with further prayer to quash the execution proceedings itself so entertained by the learned Court below. 4. Learned counsel for the petitioner has argued that execution proceedings, which have been entertained by the Court of Senior Civil Judge, Nalagarh, are void abinitio, for the simple reason that in terms of statutory provisions of Sub-Section 3 of Section 39 of the Code of Civil Procedure, as the said Court did not had the jurisdiction to try the suit in which the decree was passed for want of pecuniary jurisdiction, neither it could have had entertained the execution petition nor ventured to execute the decree passed by the Court at Pune. On this count, the learned counsel for petitioner prays for quashing of the impugned order as well as for quashing of the proceedings, which are so pending in the execution of the decree in issue before the executing Court at Nalagarh. 5. Learned counsel appearing for the respondent has submitted that there is no illegality in the execution petition being entertained by the learned Court at Nalagarh nor the provisions of Sub-Section 3 of Section 39 of the Code of Civil Procedure prohibit the said Court from executing the decree in issue. Learned counsel has argued that the very opening words of Section 39 of the Code of Civil Procedure are that the Court which passed a decree may, on the application of the decree-holder, send the same for execution to another Court of competent jurisdiction against the person against whom 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 and as in the present case, the Judgment Debtor was carrying on its business at Nalagarh and property is situated there, therefore, execution petition was rightly sent to the Court at Nalagarh. 6. He has further argued that Sub-Section 3 of Section 39 of the Code of Civil Procedure nowhere contains word "pecuniary", therefore, the word "jurisdiction" has to be read as territorial jurisdiction only and nothing else. On this count, he submits that the present petition being devoid of any merit, be dismissed. 7. I have heard learned counsel for the parties and gone through the pleadings as well documents appended therewith. 8. On this count, he submits that the present petition being devoid of any merit, be dismissed. 7. I have heard learned counsel for the parties and gone through the pleadings as well documents appended therewith. 8. The execution proceedings have been entertained by the Court at Nalagarh post there transfer to the said Court from Pune on the ground that property in issue is situated within the territorial limits of the said Court at Nalagarh. 9. Be that as it may, the fact of the matter still remains that as the original suit filed by the Decree Holder was for recovery of Rs.1,15,10,012.11 alongwith interest @24%, by no stretch of imagination, it can be said that the learned Court at Nalagarh, which is now executing the decree passed against the present petitioner by the Court at Pune, had the jurisdiction to try the original suit, had the same been filed before it at Nalagarh, as the pecuniary limit of said Court was only Rs.10,00,000/- in the year, 2013. That being the case, there is merit in the contention of the learned counsel for the petitioner that the execution of the decree in issue by the said Court was primarily hit by the provisions of Sub-Section 3 of Section 39 of the Code of Civil Procedure. Said provision clearly stipulates that for the purpose of Section 39 of the Code of Civil Procedure, a Court shall be deemed to be the Court of competent jurisdiction, if at the time of making the application for transfer of decree to it, such court would have jurisdiction to try the suit in which such decree was passed. 10. In my considered view, the word "jurisdiction" cannot be construed or interpreted myopically as the learned counsel for the respondent wants the Court to interpret. The word "jurisdiction" has to be interpreted by giving it the widest possible meaning and same will not only include territorial jurisdiction, but also pecuniary jurisdiction to try the suit in which the decree was passed. That being the case as the Court at Nalagarh was not having jurisdiction to try the suit in which the decree was passed, therefore, the same obviously was not having jurisdiction for executing the decree so sent from Pune Court. 11. That being the case as the Court at Nalagarh was not having jurisdiction to try the suit in which the decree was passed, therefore, the same obviously was not having jurisdiction for executing the decree so sent from Pune Court. 11. In view of the reasonings given hereinabove, this petition is allowed and the execution petition being entertained by the learned Senior Civil Judge, Nalagarh, is ordered to be quashed and set aside, so also the orders passed by it. However, it shall be open to the Decree Holder/respondent to move the competent court afresh for passing of appropriate orders, so that execution proceedings can be transferred to the Court of competent jurisdiction. Pending miscellaneous application(s), if any, also stand disposed of.