High Court Of Calcutta
J. K. BISWAS
AUTO TRADE AND FINANCE CORPORATION - Appellant
Versus
RAJ KISHORE SANGANARIA - Respondent
G. A. 4063 Of 2003
Decided On : 01/07/2004
JURISDICTION - EXECUTION OF DECREE - JURISDICTION OF COURT - EXECUTION OF DECREE AGAINST PROPERTY OUTSIDE JURISDICTION - CODE OF CIVIL PROCEDURE, 1908 - SECTION 39 - COURT PASSING DECREE HAS NO JURISDICTION TO EXECUTE DECREE AGAINST PROPERTY SITUATE OUTSIDE ITS JURISDICTION - SUB-SECTION 4 OF SECTION 39 REMOVES ALL DOUBTS ABOUT LACK OF POWER OF COURT PASSING DECREE TO EXECUTE IT AGAINST ANY PERSON OR PROPERTY OUTSIDE LOCAL LIMITS OF ITS JURISDICTION.
Fact of the Case:
Decree-holder filed a suit for declaration, injunction, and recovery of money against the judgment-debtors. The suit was decreed ex parte. The decree-holder filed an execution application for attachment and sale of immovable properties belonging to the judgment-debtors, admittedly, outside the local limits of ordinary original civil jurisdiction of the court. The judgment-debtors filed an application for dismissal of the execution application on the ground that the court had no jurisdiction to entertain the execution application and appoint the receiver-in-execution with direction to sell the properties.
Finding of the Court:
The court held that the court passing the decree has no jurisdiction to execute the decree against any person or property outside the local limits of its jurisdiction. Sub-section 4 of section 39 of the Code of Civil Procedure, 1908 removes all doubts about the lack of power of a court passing a decree to execute it against any person or property outside the local limits of its jurisdiction.
Issues: Whether the court has jurisdiction to entertain the execution application and appoint the receiver-in-execution with direction to sell the properties situate outside the local limits of ordinary original civil jurisdiction of the court.
Ratio Decidendi: The court relied on the provisions of section 39 of the Code of Civil Procedure, 1908, and held that the court passing the decree has no jurisdiction to execute the decree against any person or property outside the local limits of its jurisdiction. The word 'may' in section 39 of the Code of Civil Procedure, 1908, does not signify anything more than saying that the court passing the decree is empowered to transfer it for execution to another court of competent jurisdiction.
Final Decision: The court allowed the application filed by the judgment-debtors and dismissed the execution application. The receiver-in-execution was discharged with the direction to give back possession of the properties to the judgment-debtors at once.
( 1 ) THIS application (G. A. No. 4063 of 2003) has been taken out by the judgment-debtors in the execution application (G. A. No. 1254 of 2001); they were the defendants in Civil Suit No. 614 of 1999 filed in this Court by the decree-holder as plaintiff. In the Master's summons dated November 29th, 2003 connected with this application, the judgment-debtors have made the following prayers: - (A)application being G. A. No. 1254 of 2001 in C. S. No. 614 of 1999 (M/s. Auto Trade and Finance Corporation v. Raj Kishore Sanganaria and Anr.) be dismissed. (b)orders dated April 10, 2001 passed in G. A. No. 1254 of 2001, order dated July 24, 2003 and November 14, 2003 be recalled and the Receiver appointed over two flats being Flat D and Flat F situate in Block-B-2 at second floor Premises No. 106, Kiran Chandra Singha Road, Howrah-711 102, be forthwith discharged. (c)stay of all proceedings in G. A. No. 1254 of 2001 and applications connected therewith in C. S. No. 614 of 1999 (M/s. Auto Trade and Finance Corporation v. Raj Kishore Sanganaria and Anr. ). (d)an order directing the Receiver appointed by this Hon'ble Court in G. A. No. 1254 of 2001 and applications connected therewith in C. S. No. 614 of 1999 to forthwith handover possession of the two flats being flat No. D and flat No. F situate in Block-B-2, at second floor Premises No. 106, Kiran Chandra Singha Road, Shibpur, Howrah to defendants/judgment debtors. (e)injunction restraining the plaintiff/decree holder and the Receiver appointed in G. A. No. 1254 of 2001 (M/s. Auto Trade and Finance Corporation v. Raj Kishore Sanganaria and Anr.) and each of them whether by themselves or their servants, agents and/or assigns or howsoever from giving any effect or further effect to and/or acting in terms of or pursuant to any of the orders dated April 10, 2001 or July 24, 2003, and November 14, 2003 by this Hon'ble Court in G. A. No. 1254 of 2001. (f)injunction restraining the plaintiff/decree holder and the Receiver appointed in G. A. No. 1254 of 2001 (M/s. Auto Trade and Finance Corporation v. Raj Kishore Sanganaria and Anr.) and each of them whether by themselves or their servants, agents and/or assigns or howsoever from giving any effect or further effect to and/or acting in terms of or pursuant to the advertisement of sale of the two flats being Flat D and Flat F in Block-B-2, at second floor Premises No. 106, Kiran Chandra Singha Road, Shibpur, Howrah, published by the learned Receiver being annexure 'e' to the affidavit. (g)ad-interim orders in terms of prayers above. (h)cost of this application be borne by the plaintiff/decree holder. (i)such other order or orders as this Hon'ble Court may deem fit and proper. ?
( 2 ) BRIEFLY stated, the facts leading to the filing of the present application by the judgment-debtors are these. On November 19th, 1999 the decree-holder, a sole proprietorship firm of Arjun Das Goyal and Sons, a Hindu-undivided family, filed Civil Suit No. 614 of 1999 in this Court against the judgment-debtors. It was filed for the following reliefs:- (A)a decree for Rs. 14,28,000/- (Rupees Fourteen lakhs twenty eight thousand) only from the defendants jointly and severally; (b)interim interest and interest on judgment at the rate of 24% till the realisation of dues; (c)declaration that the property mentioned in annexure ?b? herein to remain as security for repayment of the claim of the plaintiff; (d)a decree for sale of the property mentioned in the schedule being annexure ?b? to the plaint with direction or (sic) appropriation of the net proceeds thereof in protento satisfaction of the plaintiff's claim and dues in the suit; (e)an injunction be granted restraining the defendants their servants, agents and men from selling, disposing of or transferring or encumbering the said property; (f)attachment; (g)receiver; (h)costs; (i)such further and/or other relief or reliefs which the plaintiff is otherwise entitled both under the law and in equality. ?
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