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GUJARAT HIGH COURT
R.M.DOSHIT, J
SWATI LAND DEVELOPERS PVT.LTD. – Appellant
Versus
VRAJLAL TAPUBHAI LODHIA ALIAS VAJUBHAI T LODHIA AND OTHERS – Respondent
CIVIL REVISION APPLICATION No 1287 of 2001
For the Appellants/Petitioners: MR BP TANNA, MR DJ BHATT
For the Respondents: MR SURESH M SHAH, MR MEHUL SHAH
Execution of decrees can be transferred ex parte to a court where the judgment-debtor conducts business, affirming the ministerial nature of such orders.
Headnote:(A) Civil Procedure Code, 1908 - Section 39 - Execution of Decree - Transfer of decree for execution may be made ex parte without notice to the judgment-debtor, considering the condition that the judgment-debtor carries on business within local jurisdiction of the other court. (Paras 5, 6, 9)
(B) Revision - Discretionary powers of courts under Section 115 CPC - The court may refuse to exercise these powers in favor of substantial justice, maintaining that no notice need be provided prior to transfer of decree in execution. (Paras 7, 8)
Facts of the case:
The petitioner initiated a civil suit for recovery based on a consent decree. Dispute arose when the judgment-creditors sought transfer of the decree to a different jurisdiction for enforcement, which the petitioner contested, arguing about properties located in another district.
Findings of Court:
The impugned order for decree transfer was validated under the circumstances outlined in Section 39 CPC, ruling the transfer as a ministerial act that does not require judicial inquiry, thereby rejecting the revision application.
Issues: The main questions revolved around the legitimacy of ex parte orders for decree transfer without notice and whether the execution could be enforced against properties believed to be located elsewhere.
Ratio Decidendi: Transmission of a decree for execution can be made ex parte; the decree-holder's location is sufficient for transfer, regardless of the judgment-debtor's properties in another district. The court emphasized discretionary powers in revision cases and the necessity for substantial justice regardless of procedural complaints.
Result: The Civil Revision Application is dismissed with costs. Rule is discharged.
JUDGEMENT
This Revision Application under Section 115 CPC has been preferred by the judgment-debtor against the order dated 13th September, 2001 made by the learned Civil Judge (S.D.), Vadodara on Non-Judicial Misc. Civil Application No.10/2001 and against the order dated 1st October, 2001 made by the learned Civil Judge (S.D.), Rajkot in Special Execution Application No.154/2001. The petitioner herein had instituted Special Civil Suit No.303/2000 in the Court of Civil Judge (S.D.), Vadodara against the respondents defendants for recovery of a sum of Rs.7,21,18,013=00 and for other reliefs. The said dispute was settled out of the Court and a decree was passed on 11th September, 2000 in terms of the consent terms. Pursuant to the said consent decree, the defendants (claiming to be the judgment-creditors under the consent decree) moved above referred Non-Judicial Misc. Application No.10/2001 under Section 39 CPC for transfer of decree to the Civil Court at Rajkot. According to the judgment-creditors the judgment-debtor (the plaintiff) has properties situated at Rajkot which could satisfy the decree. Under the impugned order dated 13th September, 2001 the said Application is allowed and the decree is ordered to be transferred to the Civil Court (S.D.), Rajkot. On such transfer being made, the judgment-creditors moved above referred Special Darkhast No.154/2001. In the said Darkhast, on 1st October, 2001 under Application Ex.7, the judgment-debtor applied for adjournment. The same was granted in the following terms:-
- "Time is hereby granted subject to maintaining prevailing position to safeguard the interest of the J.C. In the mean time, kept on 4/10/2001 as agreed."
- On the said order having been made the judgment-debtor moved Application Ex.8 for an adjournment for 20 days with a view to challenging the above order dated 1st October, 2001. On the said Application, the Court made order as under :
- "Heard. Read the objections. The time is conditionally granted as per the convenience of the L.A. for the J.D. who is sick and that too after hearing his L.representatives. Just to avoid further complications & in the larger interests of justice the interim order is passed.
- Hence, it is hereby rejected."
- Feeling aggrieved, the judgment-debtor has preferred the present Revision Application.
- Mr.Tanna has strenuously urged that the suit was instituted by the petitioners for recovery of more than Rs.7 crores from the defendants. Under the consent decree, the petitioner had agreed to pay certain amounts to the defendants provided the defendants carry out the rest of the terms of the consent decree. The defendants have failed to carry out the terms of the said consent decree. The petitioners, therefore, are under no obligation to pay any amount to the defendants pursuant to the said consent decree. No execution application, therefore, could be maintainable against the petitioner.
- I am of the opinion that the maintainability of the execution application or the construction/ interpretation of the consent terms is not the matter at issue in the present Revision Application. The contentions raised in that behalf are besides the point.
- I, therefore, do not deal with the same.
- Mr.Tanna has submitted that the petitioner has number of properties at Vadodara. There was no need for transfer of decree as envisaged under Section 39 CPC.
- Further if at all, such transfer was required, the petitioner ought to have been given notice of the same and an opportunity of being heard. Had the petitioner been given such opportunity the petitioner could have pointed out the number of properties situated at Vadodara which the petitioner owns. Mr.Tanna has also submitted that on account of the status quo ordered by the learned Civil Judge (S.D.), Rajkot all the construction activities taken up by the petitione
