Point of Law : Even on merits, it is not possible to hold that the respondent has made out a clear case for dismissal of the present execution petition, for want of territorial jurisdiction on the ground that its assets are located outside the territorial jurisdiction of this Court.

JUDGMENT :

(By Video-Conference on account of COVID-2019)

EX.APPL.(OS) 1254/2021 (under Order XXI, Rule 23(2), read with Section 141 & 151 of CPC, 1908)

1. This is an application preferred by the respondent/ judgment / award debtors in OMP (ENF)(COMM) 127/2021, which has been filed by the beneficiaries of an arbitral award, dated 23rd November, 2019, casted consequent to arbitral proceedings between the award holders and the award debtors, who would be referred to, for convenience, as the petitioners and the respondents respectively.

2. Notice was issued in the present execution petition, by this Court, on 16th August, 2021. On the said date, the respondents were also directed to file affidavits of their assets on the date of cause of action, the date of award, as well as on that date, i.e. 16th August, 2021 in Form 16A, Appendix E under Order XXI, Rule 41(2) of the Code of Civil Procedure, 1908, (CPC), before the next date of hearing.

3. Subsequently, EA(OS) 1037/2021 was filed by the respondents, seeking modification of the order dated 16th August, 2021. In the said application, the respondents categorically objected to the direction, by this Court, to the respondents, to file their list of assets on the date of cause of action, the date of award, as well as on 16th August, 2021. A modification of the order dated 16th August, 2021, doing away with the aforesaid requirement was, therefore, sought.

4. The respondents also filed the present application EA(OS) 1254/2021, for dismissal of the present execution petition on the ground of want of territorial jurisdiction. Prayer (c) in the present application, specifically seeks that the present application be decided before deciding EA(OS) 1037/2021. Today, too, learned Counsel for the applicant/ respondents has reiterated the request that the present application be taken up first and decided prior to EA(OS) 1037/2021.

5. Accordingly, acceding to the request, this Court has heard learned Counsel for both sides on the present application, i.e. EA(OS) 1254/2021. In view of the specific request by the applicant in this application for deciding this application prior to EA(OS) 1037/2021, which seeks modification of the order dated 16th August, 2021, passed by this Court, the present application has necessarily to be decided assuming the order dated 16th August, 2021, to be valid and binding.

6. Mr. Vidit Gupta, learned Counsel appearing for the applicant in the present application, submits that these execution proceedings are bad for want of territorial jurisdiction, as the respondents have no asset within the territorial jurisdiction of this Court and are not resident or situated within the said territorial jurisdiction. He has invited my attention to the addresses of the respondents, as provided in the execution petition, which are at Gurgaon. He has also drawn my attention, to Para 9 of the present application, which reads as under :

“9. That it is a Fundamental Principle of law that an Executing Court can entertain an Execution Petition provided either the mortgaged and/or charged properties or the assets, moveable and immovable, the Judgment Debtors are situated within the territorial jurisdiction of this Hon’ble Court. Admittedly, in the present case, neither the Judgement Debtors reside, work for gain nor they have any assets, movable or immoveable within the territorial jurisdiction of this Hon’ble Court.”

7. Mr. Gupta, drew my attention to Section 39(4) of the CPC, 1908, to support his submission. For ready reference, Section 39 of the CPC, 1908, may be reproduced in its entirety thus :

“39. Transfer of decree - (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court [of competent jurisdiction],—

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally wor