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KALYAN JYOTI SENGUPTA, J.
Birla Corporation Ltd.
versus
Prasad Trading Company and Anr.
E. C. No. 6 of 200
Decided on : 29 -8 -2006
EXECUTION OF DECREE - JURISDICTION - COURT PASSING DECREE - POWER TO EXECUTE DECREE AGAINST PERSON OR PROPERTY OUTSIDE JURISDICTION - SECTION 39(4) OF CIVIL PROCEDURE CODE - INTERPRETATION - RULE MAKING POWER OF CHARTERED HIGH COURT - EFFECT OF ORIGINAL SIDE RULES - PRACTICE AND PROCEDURE - EQUITABLE MODE OF EXECUTION - APPOINTMENT OF RECEIVER.
Fact of the Case:
In a bunch of execution applications, the question arose whether the executing court, which had passed the decree, had the authority to execute the decree against any person residing or touching property situated outside the local limit of its jurisdiction in view of the amendment of Section 39 with the insertion of sub-section (4) of the Civil Procedure Code.
Finding of the Court:
1. The court that has passed the decree does not lose its authority to execute the same merely by reason of the headquarters of such court being removed to another place or merely because the local limits of the jurisdiction of such court are altered. 2. The power of the court to execute its own decree is discretionary and not mandatory. 3. The court may appoint a receiver as an equitable mode of execution in respect of property situated outside its ordinary original civil jurisdiction. 4. The Original Side Rules framed by the Chartered High Court under Clause 37 of the Letters Patent read with Section 108 of the Government of India Act, 1915 and Article 225 of the Constitution of India have the effect of Supreme Court legislation and override the general law of procedure, i.e., the Civil Procedure Code. 5. The practice and procedure followed by the Chartered High Court for a long time, including the appointment of a receiver over property situated outside the territorial jurisdiction, cannot be taken away or curtailed by sub-section (4) of Section 39 of the Civil Procedure Code and can only be done by the Full Court of the Chartered High Court.
Issues: 1. Whether the court that has passed the decree has the authority to execute the decree against any person residing or touching property situated outside the local limit of its jurisdiction in view of the amendment of Section 39 with the insertion of sub-section (4) of the Civil Procedure Code? 2. Whether the Original Side Rules framed by the Chartered High Court override the provisions of the Civil Procedure Code? 3. Whether the practice and procedure followed by the Chartered High Court for a long time, including the appointment of a receiver over property situated outside the territorial jurisdiction, can be taken away or curtailed by sub-section (4) of Section 39 of the Civil Procedure Code?
Ratio Decidendi: 1. Sub-section (4) of Section 39 of the Civil Procedure Code does not take away the power of the Chartered High Court in the matter of execution of a property situated outside the territorial limit of the court. 2. The Original Side Rules framed by the Chartered High Court under Clause 37 of the Letters Patent read with Section 108 of the Government of India Act, 1915 and Article 225 of the Constitution of India have the effect of Supreme Court legislation and override the general law of procedure, i.e., the Civil Procedure Code. 3. The practice and procedure followed by the Chartered High Court for a long time, including the appointment of a receiver over property situated outside the territorial jurisdiction, cannot be taken away or curtailed by sub-section (4) of Section 39 of the Civil Procedure Code and can only be done by the Full Court of the Chartered High Court.
Final Decision: The court held that all the execution applications were entertainable but had to be examined on an individual basis to determine whether execution could be levied under the equitable mode or not.
2. Mr. A. K. Mitra, Senior Advocate, while leading the argument in support of the point that this Court has not lost its jurisdiction, submits that the power of the executing Court flows from Section 38 of the Code. It will appear from the reading of the language of the said Section that the decree may be executed by the Court which has passed it or by the court to which it is sent for execution. Therefore, it is clear that the Court, which has passed a decree, does not lose jurisdiction to execute it irrespective of location of the property or residence of the person against whom decree is sought to be executed. According to him, it is the convenience of the executing Court either to execute it by itself or to send it to some other Court. The intention of the legislature is that the decree by the Civil Court should not be allowed to be frustrated and the Court must see by any lawful means the fruit thereof is enjoyed. The legislature mandates, if one reads the language of the said Section 39 subsection (1), clearly that it is the discretion of the Court which has passed the decree, and that too only on the application of the decree holder to send it for execution to another Court of competent jurisdiction under the circumstances as mentioned in Clauses (a), (b), (c) and (d) of the said sub section. Therefore, he contends that newly inserted sub-section (4) in Section 39 has to be read conjointly with rest portion of the Sections 39 and 38. By this provision original power of execution of the Court, which has passed decree, amongst other appointing Receivers, cannot be taken away. His further contention is that the Learned Single Judge rendered the decision noted above, without having assistance of the previous catena of decisions rendered by this court on this point whereby and whereunder it has been uniformly held that this Court while executing a decree without sending the same for execution to another Court had executed it by appointing a Receiver over property situate outside jurisdiction or requiring the person residing outside jurisdiction of this Court to be present before the Court for execution. The following are the large number of decisions :
ILR 66 Cal 513
ILR 14 Cal 661
ILR 15 Cal 667
ILR 19 Cal 13
AIR 1930 Cal 502
AIR 1937 Cal 570
3. He urges thereafter that the practice and procedure which followed from the inception of this Court has got the effect of Rule framed by this Court, which in its turn has been held to be the effect of supreme legislation. The provisions of the Original Side Rules framed by this Court override the provisions of Civil Procedure Code and this principle of law has been decided long time back by Full Bench decision of this Court in case of Manickchand Durgaprasad v. Pratabmull Rameswar reported in AIR 191 Cal 483 (Full Bench). The aforesaid Full Bench decision of this Court held in paragraph 13 as follows :
"The restriction upon the power of the Court as contained in the proviso to cl. 37 of the Letters Patent is that the rules framed under that cl
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