The Court ruled that under Section 39(4) of the Code of Civil Procedure, execution of a money decree cannot be carried out on properties beyond the territorial limits of the Court.

1.This appeal is at the instance of a judgment - debtor and is directed against order dated April 6, 2011 passed by a learned single Judge of this Court by which his Lordship appointed a Receiver in respect of a property described in paragraph 12 of the affidavit in support of the tabular statement of the application for execution which is undisputedly situated beyond the territorial limit of this Court.

2. The decree was one for payment of money and in execution of the decree, the decree - holder sought to attach and sell an immoveable property belonging to the appellant situated beyond the territorial limits of this Court.

3. The only question raised by the appellant in this appeal is that in view of S.39(4) of the Code of Civil Procedure , the learned executing Court acted without jurisdiction inasmuch as, this Court has no jurisdiction to attach or sell an immoveable property situated beyond its territorial limits as an Executing Court.

4. Mr. Mitra, the learned Senior Advocate appearing on behalf of the appellant, contended with assiduity before us that in view of insertion of sub-section (4) in S.39 of the Code of Civil Procedure by the amendment of the year 2002, at present, there is no scope of contending that this Court has power to touch any property in execution of a money decree when such property is situated beyond the territorial limits of the Court. In support of such contention, Mr. Mitra has relied upon the decisions of the Supreme Court in the case of Salem Advocates Bar Association II v. Union of India , reported in 2005 (6) SCC page 344 : ( AIR 2005 SC 3353 ) and Mohit Bhargava v. Bharat Bhushan Bhargava , reported in 2007 (4) SCC page 795 : ( AIR 2007 SC 1717 ).

5. Mr. Mitra, therefore, prays for setting aside the order passed by the learned single Judge on the ground of want of jurisdiction.

6. Mr. Talukdar, the learned Senior Counsel appearing on behalf of the decree - holder, has, on the other hand, opposed the aforesaid contention of Mr. Mitra and has contended that this Court has jurisdiction under the Rules framed by this Court under the Letters Patent as well as the Code of Civil Procedure to take step for attachment and sale of a property situated even beyond the territorial limits of this Court. According to Mr. Talukdar, if there is any conflict between the provisions contained in the Code of Civil Procedure and those of the Rules framed by this Court, the latter should prevail over the former. Mr. Talukdar, in this connection, relies upon a decision of a learned single Judge of this Court in the case of Birla Corporation Ltd. v. Prasad Trading Company reported in AIR 2007 Cal. 38, which has been relied upon by the same learned single Judge who passed the order impugned in a subsequent decision in the case of Srei Equipment Finance Ltd. v. Khyoda Apik and another disposed of on May 12, 2011 in EC No. 142 of 2009 while disposing of GA No. 20 of 2011, Mr. Talukdar, therefore, prays for dismissing the appeal.

7. Therefore, the only question that arises for determination in this appeal is whether in view of insertion of sub-section (4) to S.39 of the Code of Civil Procedure , this Court has jurisdiction to appoint a Receiver for the purpose of taking possession of the property for sale of the same notwithstanding the fact that such property is situated beyond the territorial limit of this Court.

8. In order to appreciate the aforesaid question, the provisions contained in S.38 and