The provisions of section 39 of the CPC do not apply to the execution of a decree through a Court receiver under section 51(d) of the CPC.

S. U. KAMDAR, J.

( 1 ) THE present Chamber Summons is a classic example of how the legitimate claim of a creditor can be defeated by technical and legal wrangles raised by the debtors. The efforts do not end with the passing of the decree but continue even in execution of the decree thereof.

( 2 ) IN the present case execution of the decree is sought to be obstructed by raising the issue of jurisdiction of this Court by relying upon the provisions of sub-section (4) of section 39 of Civil Procedure Code as amended by amending act of 2002.

( 3 ) THIS Chamber Summons has been taken out under Order 21, Rule 89, rule 90 and under section 151 of the C. P. C. Some of the brief facts which are relevant to determine the issue raised by the judgment debtor are briefly enumerated as under :

( 4 ) A suit has been filed by the plaintiffs who are a financial institution known as ICICI Limited in their capacity as Debenture Trustees for the recovery of Rs. 6,84,91,000/ -. In 1993 the first defendant issued debentures and raised the funds of about Rs. 19,00,000/ -. The said debentures were secured debentures and to secure the interest of the debentures holders the plaintiff was appointed as a debenture trustee. The total liability in the said defendants thereunder was around Rs. 18. 97 crores. The defendant company made part payments in discharge of the said liabilities. However admittedly there were defaults by the company to make the payment of the balance amount. From time to time the defendants sought time from the plaintiff to repay the amount which was outstanding under the said debenture trust. However the defendants failed and neglected to make the payment of the balance amount due and payable. Some time in or about January, 2000 a suit was filed for the balance amount with interest accrued thereon. At that time it was around Rs. 6 crores. The said suit was filed in this Court being Suit No. 535 of 2000. The properties which are mortgaged in favour of the plaintiff under the said debenture trust are situated in the state of Tamil Nadu and in the state of Gujrat. In the said suit on 23. 6. 2000 consent terms were filed. Under the said consent terms the defendant has admitted the repayment of an amount of Rs. 6,85,23,000/- and has also agreed that the said amount will be repaid in certain instalments. Thus by the said consent terms a decree has been passed in favour of the plaintiffs and against the defendants for the aforesaid amount. The consent terms also inter alia provides that in an event of default in making the payment, the Court Receiver High Court shall stand appointed without any further orders in execution of the decree and shall have a power to take possession of the properties set out in exhibits to the plaint and will be entitled to sell the same either by public auction or private treaty and the net sale proceeds will be adjusted against the said decree. The said Clause-9c of the consent terms reads as under :

"9. . . . . (C) The Court Receiver, High Court, Bombay shall without any further order stand appointed by Bombay High Court as Receiver in execution with power to take possession of the properties set out in Exhibit-A 1, A- 2, A-3, A-4, A-5, B-1, B-2 and C to the plaint and sell the same either by public auction or private sale and the Court Receiver do pay over the net sale proceeds thereof to the plaintiff/debenture holders towards payment of decretal amount payable by the defendant No. 1 subject to the rights of the other chargeholders. "

( 5 ) IT is an admitted position that the defendants failed to make payment of instalment amount as prescribed under the said consent decree and thus the said decree became executable as provided under the aforesaid Clause 9-C of the consent terms.

( 6 ) THEREAFTER the Judges order was taken out being 32 of 2004 for taking forcible possession of the said assets of which Court receiver was appointed as a receiver. By order dated 10. 2. 2004 the learned Single Judge of this