The executing Court has jurisdiction to enforce a decree against a judgment debtor with business and assets within its limits, and failure to timely object to jurisdiction waives the right to contest.

JUDGMENT :

(Umesh A. Trivedi, J.)

Since both these petitions arise out of orders passed by executing Court, between the same parties, and more or less involving the same issue, it is thought fit to determine the same by this common judgment and order.

SUBMISSIONS IN SCA NO. 5890 OF 2021

1. This petition is filed by the petitioner – judgment debtor challenging the order passed by Principal Senior Civil Judge, Jamnagar, dated 20.02.2021 below Exhibit-56 in Regular Execution Petition (Commercial) No. 161 of 2019 filed by the decree holder under Order XXI Rule 41(1) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code, 1908”) seeking an order directing the judgment debtor to examine by way of interrogatories in relation to his property or means of satisfying the decree and for production of documents by the judgment debtor, which came to be allowed.

The petitioner herein would be referred to as judgment debtor and respondent herein would be referred to as decree holder, as per their status before the executing Court.

2. The judgment debtor has challenged the impugned order dated 20.02.2021 passed below Exhibit-56, as it was passed, without allowing the judgment debtor to file his reply, in violation of principles of natural justice, and interalia challenging the territorial jurisdiction of the executing Court for executing the decree personally against the judgment debtor in view of Section 39(4) of “the Code, 1908”. However, since judgment debtor relies on submissions made, so far as it relates to territorial jurisdiction of executing Court in view of Section 39(4) of “the Code, 1908”, while decree executed against him personally, substantially raised in connected petition, the judgment debtor relies on the said submissions for the issue of territorial jurisdiction.

3. Learned Counsel for the judgment debtor, in his written submissions, vehemently submitted that judgment debtor was not served any notice and he was not allowed to file his reply to Exhibit-56 application filed by the decree holder in utter violation of principles of natural justice.

3.1 It is submitted that from a bare perusal of the impugned order, wherein para 29 says “application and relevant documents were served on the advocate on 19.10.2020”, while it is a matter of record that the application was reserved for orders on 19.10.2020 itself, without allowing the petitioner to file his reply or objections. Thus, it was on the same day that the application was served and it was reserved for orders on the same day. In support of the aforesaid submission, learned advocate appearing for the judgment debtor relied on a decision of the Supreme Court in the case of Johra & Ors. v. State of Haryana & Ors., rendered in Civil Appeal Nos. 11757 - 11758 of 2018, more particularly para 8 and 9 thereof, wherein it is held that ‘basic fundamental principle of law provides that no order can be passed by any Court in any judicial proceedings against any party to such proceedings without hearing and giving such party an opportunity of hearing’.

3.2 It is further submitted that the opportunity of being heard should be real, reasonable and effective. The same should not be for namesake. It should not be a paper opportunity. Where a decision is based upon a document in a proceeding, copy of the same should be provided to the affected party. Otherwise, it would violate the principles of natural justice as the opportunity of being heard should be an effective opportunity and not an empty formality. Denial of opportunity may make an order void. Limitation of time cannot stand in the way of not giving adequate opportunity.

3.3 It is further submitted that the application Exhibit-56 filed by decree holder is based on irrelevant, very old and misconceived facts, making wild and baseless allegations against the judgment debtor, which has been allowed by the executing Court without there being any basis to do so.

3.4 It is further submitted that fals