JAMMU AND KASHMIR HIGH COURT
Tashi Rabstan, J.
Om Parkash and Ors. —Petitioners
versus
State of J&K and Ors. —Respondents
Pet. u/s 104 No.33 of 2012, MP No.35 of 2012 with Pet u/s 104 No.35 of 2012, MP No.37 of 2012
Decided on 5.10.2016

Headnote:Civil Procedure Code, 1908—Section 38, 39, 46 and Order 21 Rule 49—Application by petitioners seeking transfer of Execution application to court of District Judge, Samba from court of District Judge at Jammu—Execution application was filed by Respondent No.1 seeking execution of Arbitration Award—Arbitration award was in essence re-allocation of shares of partners which parties were carrying business in three partnership firms—Transfer application was moved on ground that after creation of Samba District in year 2006, files pertaining to that District were being transferred and partnership property was situated in District Samba and Transfer Deeds were required to be entered between parties and since deeds pertained to immovable property would be required to be registered as per Section 17 of Registration Act—Execution court dismissed the application—Revision—Award for which execution was made, was not of immovable property—Share of a partner in the assets of partnership which has also immovable properties, is a movable property—Award was made at Jammu and Petitioner at one point of time himself had filed application for execution of award at District Court, Jammu but withdraw it—No illegality in order impugned.

       Held: It is the contention of the learned counsel for the petitioners that since necessary deeds are required to be registered for the purpose of execution of the award as prescribed under Order 21 Rule 34 and such documents can only be registered by the courts at Samba, as such, the executing court should have transferred the execution application under Section 39 of the Code of Civil Procedure. The perusal of Section 39 of the Code of Civil Procedure will show that same covers the cases where the court which has passed the decree is approached by decree-holder for the transfer of the same to another court of competent jurisdiction and such court may transfer the decree if the conditions contained in Section 39 of the Code of Civil Procedure are satisfied. Section 39 of the Code of Civil Procedure is not at all applicable in the present case as the present case pertains to the execution of award and the execution application has been filed by the Respondent No.1. In the present case, it is the Respondent No.1, who is a decree-holder and he has not filed any application for the transfer of the decree. Otherwise also, it is not obligatory for the Court, which has passed the decree to mandatorily transfer the same on an application but the court has the discretion to do so for the eventualities mentioned in the Section. As such, the contention of the petitioners that in view of Section 38 and Section 39 of the Code of Civil Procedure, the decree was required to be transferred without any merit as the award can be executed by the District judge, Jammu as prescribed by Order 21 Rule 34.

       On the other hand, the District Court will I otherwise also have the power to execute the decree keeping in view the fact that award, for which, the execution is being made, is not of immovable property. Admittedly in the present case in three partnership business being carried on under tree partnership deeds, there is re-allocation. I of shares of the partners. In one partnership deed i.e. Mis Sharman Rice Mill only Baldev Sharma and Prabhdev Singh and the legal heirs of Late Sh. Balwant Singh will have the share, whereas another I partnership business, i.e., Bari Brahamna Rice Mill and Bari Brahamna Salt, only Om Parkash and \ Tilak Raj will have share, as such, there is no dissolution of the partnership deeds but it is only re- \ allocation of the partnership shares. Apart from the aforesaid award there is an award pertaining to the recovery of money. Hon’ble Supreme Court has already held that share of partner in partnership business is a movable property. The learned counsel for the Respondent No.1 has relied upon the judgments passed by the Apex Court in case titled Commissioner of Income Tax West Bengal Calcutta Vs. Juggi Lal Kamlapat AIR 1967 SC 401, Rattan Lal Sharma Vs. Parshotam Harit 1974 Vol.(1) SCC 671 and Addanki Narayanaappa and Anr. Vs. Bhaskra Krishnaappa AIR 1966 SC 1300. I n the aforesaid judgments, Hon’ble Apex Court has already settled that share of a partner in the assets of partnership, I which has also immovable properties, is movable property.

       Otherwise also admittedly out of the three, two partnership deeds under which the business was being carried on by the parties to the litigation were executed and registered at Jammu, agreement to refer the disputes to the arbitration was executed by the parties in Jammu, arbitration proceedings were conducted in Jammu and the award was also passed In Jammu. The parties earlier filed execution application for the execution of the award before the learned District Judge Jammu and as such, cause of action having accrued in Jammu with respect to the movable property, the District Judge Jammu otherwise also has the jurisdiction to deal with the execution application. The present petitions as such are liable to be dismissed on the aforesaid reasoning only. Moreover, in view of Section 21 (3) and Section 37 of the Code of Civil Procedure, the execution proceedings can continue before the District Judge, Jammu. (Para 9, 11 and 12)

       Result: Petition dismissed.