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High Court of Karnataka (Circuit Bench At Dharwad)
ARAVIND KUMAR, J.
Narayansa
Versus
Om Sai Corporation, Miraj Taluk
W.P. No. 80300 of 2013 (GM-CPC)
Decided on : 16-07-2013
CODE OF CIVIL PROCEDURE, 1908 - Sections 42 & 47: [Arvind Kumar, J] Power of the transferee Court in executing transferred decree - Held, Section 42 expressively gives the transferee Court which executes the decree sent to it the same power vested in executing such decree as been passed by itself. In fact, the transferee Court executing the decree transferred to it can take into account the later events including the issue regarding enforceability of a decree. Section 47 of C.P.C., is clear and unambiguous on this aspect namely it defines the power of the Court executing a decree. Such executing Court is empowered to deal with all such questions relating to the execution, discharge or satisfaction of the decree and separate suit is expressly barred. The transferee Court has the same powers of transferor Court in executing a decree as if it has been passed by itself. Further, the words "as if it has been passed by itself" used in Section 42 of CPC clearly indicates that ’transferee Court’ will have to proceed with the execution as if the decree transferred to it is passed by itself. In other words, the power of the transferee Court is wider than the power of transferor Court. Where a decree passed by District Judge is transferred to Munsiff Court or a Civil Judge (Jr.Dn.) for being executed it cannot be gainsaid that Court of Munsiff (transferee) being a Court of limited jurisdiction, said decree cannot be executed by Munsiff Court or Civil Judge (Sr.Dn.) Court. It is for this reason it has to be held that the powers of the transferee Court is wider than that of the transferor Court.
Aravind Kumar, J.
1. I have heard Sri. V.R. Datar, Learned Counsel appearing for writ petitioner. The short point that arise for consideration in this writ petition is:
“Whether the transferee Court in an execution proceedings ceases to have the power to execute the decree transferred to it on account of execution petition being dismissed for any reason whatsoever though it has not forwarded a certificate to the transferor Court as required under Section 41 of C.P.C.”
2. Facts in brief leading to the filing of this petition can be crystallized as under:
(i) Respondent decree holder having filed a suit for recovery of money due to it in O.S.No.67/2004 obtained a decree and to enjoy the fruits of the decree, execution petition was filed in the Court of Senior Civil Judge, Sangli, (hereinafter referred to as “transferor Court”) State of Maharashtra. By order of precept, decree came to be transferred to the Court of Senior Civil Judge, Hungund (hereinafter referred to as “transferee Court”) for execution of said decree.
(ii) During pendency of the said execution proceedings, petitioner-judgment debtor has paid certain amounts at intervals and it was being adjourned from time to time for further payment. Decree holder was required to file a memo of calculation and despite granting sufficient time, same was not filed. Matter was listed on 08.06.2012 for filing memo of calculation Court and on account of absence of the decree holder and his Counsel on the said date, executing Court closed the execution proceedings on account of Memo of calculation having not been filed though on behalf of Decree Holder Counsel made a prayer for grant of further time.
(iii) Subsequently, another execution petition came to be filed afresh by the decree holder before the transferee Court namely the Court of Senior Civil Judge, Hungund on 17.09.2012 by the decree holder. The judgment debtor filed two applications I.A.No.3 under Order VIII Rule 1(a) r/w Section 151 of C.P.C. for production of documents and I.A.No.4 under Section 42 r/w 151 of C.P.C. to dismiss execution petition for want of jurisdiction to execute the decree. The said applications were resisted by the decree holder by filing detailed statement of objections. Executing Court after considering rival contentions raised by respective Learned Advocate appearing for the parties, by Order dated 04.07.2013 – Annexure-J allowed I.A.No.3 and dismissed I.A.No.4 filed under Section 42 of C.P.C. by the judgment debtor. It is this order dismissing I.A.No.4 which is impugned in the present writ petition.
3. Contention of Mr. V.R. Datar, Learned Counsel appearing for the judgment debtor is:
(i) When transferor Court has transferred the decree to the present executing Court (transferee Court) to execute the decree by way of precept, it was incumbent upon the executing Court namely the transferee Court to conclude the execution proceedings and send a certificate to the transferor Court on execution petition having been dismissed on 08.06.2012 Annexure-C.
(ii) Transferee Court became functus officio or in other words, it ceased to have any jurisdiction and it could not proceeded to execute the decree that had been transferred to it by transferor Court since execution proceedings came to end after dismissal.
(iii) Executing Court ought to have reported about the closure of the proceedings to the transferor Court and on account of not sending a report, the transferee Court by default cannot retain its power which had got spent itself.
4. Hence, he contends that transferee Court was not justified in dismissing I.A.No.4 filed by judgment debtor under Section 42 of C.P.C. and prays for setting aside the said order which is impugned in the present petition and seeks for allowing I.A. No. IV Annexure-G.
5. In order to answer the point formulated herein above, I am of the considered view that it would be necessary to take note of following two statutory provisions of Code of Civil Procedure, 1908
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