IMPORTANT POINTS
Section 39(4) is a negatively couched provision, which bars the court which passed the decree, from executing a decree against any person or property, outside the local limits of its jurisdiction. It is pertinent to note that Section 18(3) of the Family Court Act, is in pari materia with Section 38 of the CPC. Section 18(3) of the Family Court Act is the verbatim reproduction of Section 38 of CPC. As per both provisions, a decree or order may be executed, either by the court, which passed it or by the Court, to which it is sent for execution. The aforesaid common provisions of both Acts are general provisions, which would confer jurisdiction to execute a decree to both the courts i.e., the court, which passed the decree and the court to which it is sent for execution. But, the jurisdiction, conferred to the court which passed the decree under Section 38, is regulated by various provisions under Section 39 of CPC.

JUDGMENT :

Harilal, J.

The questions that arise for consideration in this original petition are as follows (1) whether Section 18(3) of the Family Court Act, 1984 is subject to Section 39(1)(a) and (4) of the Code of Civil Procedure. (2) whether the Family court, which passed the decree, can execute a decree personally, against the judgment debtor, who ordinarily resides or works for gain or carries on business, under the jurisdiction of another Family court.

2. The petitioner and the respondent are wife and husband. Their marriage was solemnised on 20.08.2008 and a male child was born to them in the said wedlock. Due to the difference of opinion, they fell apart and that culminated in institution of suits as O.P.Nos.251/2014 and 345/2014 before the Family Court, Muvattupuzha. Both cases were referred to mediation and settled in mediation. A compromise agreement was entered into between the parties and a compromise decree was passed accordingly. But, the respondent did not comply the terms of the compromise decree. The petitioner filed an execution petition as E.P.No.32/2017, before the very same court and sought arrest and detention of the respondent in civil prison. The family court entertained the execution petition and proceeded with the same for sometime. However, the respondent filed objection stating that the execution petition is not maintainable under Section 39(4) of CPC. After considering the rival pleas, the Family Court, Muvattupuzha passed the impugned order, directing the petitioner/wife to file an application, under Section 39(1) of CPC, for transferring the decree to the court, within whose jurisdiction the respondent-husband is residing, on a finding that the Family Court which passed the decree cannot entertain the execution petition seeking arrest and detention of the judgment debtor, who resides within the jurisdiction of another Family Court, in view of the provisions under Section 39(4) of CPC. The legality and correctness of the aforesaid findings are challenged in this original petition.

3. Heard the learned counsel for the petitioner.

4. The sum and substance of the argument advanced by the learned counsel for the petitioner is that Section 18(3) of the Family Court Act, 1984 states that a decree or order may be executed either by the family court, which passed it or by the other family court or ordinary Civil Court to which it is sent for execution. Therefore, both the family courts, which passed the decree and the family court, to which it is sent for execution, have jurisdiction to entertain the execution petition, even if the judgment debtor is residing outside the local limits of its jurisdiction. According to the learned counsel for the petitioner, there is an option under Section 18(3), either to file before the family court which passed the decree, or by the other family court to which it is sent for execution, notwithstanding the fact that the judgment debtor is residing or carrying on business or works for gain, within the jurisdiction of another family court. It is also contended that the family court is a special enactment and the provision of the Code of Civil Procedure is made applicable subject to the provisions, under the Family court Act only and, therefore, Section 18(3) of the Family Court Act, will prevail over Section 39(1) and (4) of CPC.

5. Coming to the questions raised above, both questions can be considered together, as the same are inexplicably intertwined. What is the law which regulates execution of a decree/order passed by the Family Court? Going by Section 10 of Family Court Act, we further find that the provisions, under the Code of Civil Procedure and the rules made thereunder, are made applicable, subject to the provisions of the Family court Act and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. In short, the family court also shall be deemed to be a civil court, subject to