The transferee executing court has the jurisdiction to decide the executability of a decree under Section 47 CPC.

JUDGMENT :

Prasanta Kumar Deka, J.

1. Heard Mr. K. Agarwal, learned Senior counsel assisted by Mr. N. Deka, learned counsel for the petitioners. Also heard Mr. P.J. Saikia learned counsel for the respondent.

2. In this revision petition order dated 31.7.2012 passed by the learned Civil Judge, Dibrugarh in Misc. (J) Case No. 1/2012 arising out of Money Execution Case No. 2/2007 is under challenge. The respondent as the plaintiff filed Money Suit No. 58/2003 in the court of the then Civil Judge (Senior Division) at Tinsukia against the petitioners as defendants for recovery of Rs. 1,45,019.00, further interest on the decreetal amount @ 24% per annum from 21.9.2003 till recovery alongwith cost. The summons were duly served on the defendants petitioners but as they failed to appear and contest, the suit was decreed ex-parte. The said decree was put to execution which was transferred to the court of learned Civil Judge, Dibrugarh for execution as the defendants petitioners are carrying on business within the jurisdiction of the court under Dibrugarh district.

3. The execution proceeding was initiated by the decree holder respondent upon which Money Execution Case No. 2/2007 was registered in the said court of learned Civil Judge, Dibrugarh. Having come to know about the pendency of said execution proceeding the judgment debtors petitioners filed a petition in the month of January, 2008 under Order 21 Rule 26 CPC read with Section 22 (1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred as the Act 1985). In the said petition the judgment debtor petitioners contended that due to heavy loss in the business they preferred a reference being Case No. 501/2003 before the Board of Industrial and Financial Reconstruction (BIFR) for declaring the judgment debtor company as sick industrial company. The BIFR vide order dated 20.9.2004 made a declaration u/s 17 of the Act, 1985 holding that the company is a sick industrial Company in terms of Section 3(1)(o) of the Act, 1985. In view of the aforesaid declaration further proceeding of the Money Execution was sought to be stayed in accordance with the provisions of Section 22 of Act 1985. The learned Civil Judge, Dibrugarh after hearing the parties and on perusal of the materials on record rejected the petition vide order dated 27.6.2011 directing the decree holder respondent to take steps in the execution proceeding.

4. On 19.9.2011 the judgment debtor petitioners filed another application under Order 21 Rule 26 CPC for stay of the execution of the decree for a limited period. The respondent as a decree holder filed written objection against the said petition opposing the prayer for stay of the execution proceeding. The petitioners sought for stay of the execution proceeding till March, 2012 on the ground that reference case before BIFR was pending and the judgment debtor petitioners would not be able to pay the entire amount in view of the order of BIFR. The learned court below rejected the said petition vide order dated 16.12.2001 and refused to stay the execution proceeding.

5. The petitioners filed Civil Revision Petition No. 5/2012 under Article 227 of the Constitution of India challenging both the rejection order dated 27.6.2011 and 16.12.2011. Vide order dated 5.11.2012 the revision petition was disposed of granting liberty to the petitioners to file application u/s 47 of the CPC with a direction for consideration of the same and dispose of on merit.

6. The petitioners availing the liberty filed an application u/s 47 CPC and the court of learned Civil Judge, Dibrugarh registered as Misc. (J) Case No. 1/2012. In the said application the relevant facts were stated citing the provisions under the Act 1985. It was also raised in the said petition that though the principal amount was Rs. 93,400/- in the plaint of Money Suit No 58/2003, the judgment debtors petitioners paid an amount of Rs. 10,000/- vide cheque dated 23.11.2005. Subsequent thereto the petitioners is