GAYATRI DEVI PODDAR & ORS. vs RANGALI AGROTECH PVT. LTD. & ORS.

By consent of the parties, G.A.No.212 of 2018 (appeared under the heading ''new motion'' on 31st January, 2018) is treated as on the day''s list along with E.C.No.449 of 2016 and taken up for consideration.

The judgment-debtor no.2 was examined in part. The enforcement of the award which was initially challenged has since attained finality as the special leave petition has been dismissed by the Hon''ble Supreme Court on 18th September, 2017. The judgmentdebtors have taken out this application with a plea that the affidavit of assets would not show that any properties are within the jurisdiction of this Court and, accordingly in terms of Section 39 of the Code of Civil Procedure as amended, the decree is required to be transmitted to the appropriate Courts where such properties are situated for execution. A similar point came up for consideration before a Division Bench of our Court presided over by the Hon''ble Acting Chief Justice in Mechon Services vs. Presomenant Engineers & Contractors (P) Ltd. passed in GA No.2438 of 2016 in APOT No.285 of 2016 with EC No.407 of 2016 on 4th December, 2017 in which the Hon''ble Division Bench while setting aside the order of the learned Single Judge observed as follows:

"Since the assertion, made by the decreeholder about the availability of the asset and/or property and/or money belonging to the judgment debtor within the jurisdiction of this Hon''ble Court, is denied by the judgment debtor, the decree-holder has the right to examine the judgment-debtor for ascertaining as to whether any asset and/or property and/or money belonging to the judgment debtor lies within the jurisdiction of this Hon''ble Court or not. In the event after such examination it is found that any asset and/or property and/or money belonging to the judgment debtor is available within the jurisdiction of this Court, this Court certainly can proceed with the execution case for executing the award. However, it is equally true that in the event it is ultimately found after such examination of the judgment debtor that neither any asset nor any property nor any money belonging to the judgment debtor is available within the territorial jurisdiction of this Court, the Executing Court, by virtue of the provisions contained in Section 39 of the Code of Civil Procedure, can transmit the decree for execution to the Court where the property and/or asset and/or money belonging to the judgment debtor lies.

Since examination of the judgment debtor for ascertainment of the availability of the property and/or asset and/or money belonging to the judgment debtor is a step in aid of execution, this Court cannot at this stage decide the said issue, relating to lack of jurisdiction of this Court to entertain this execution proceeding, conclusively without examining the judgment debtor.

In this regard, we like to rely upon a Division Bench decision of this Court in the case of Shew Kumar Nopany vs. Grindlays Bank Ltd., reported in AIR 1986 Calcutta 328 .

As such, this Court cannot agree with the conclusion which was arrived at by the learned Executing Court in the order impugned.

We, thus, hold that the execution will lie before this Court subject to the above observations."

In view thereof, G.A.No.212 of 2018 stands dismissed. The computer department shall make appropriate endorsement with regard to the dismissal of G.A.No.212 of 2018.

E.C.No.449 of 2016 shall appear on 23rd February, 2018 when the judgment-debtor no.2 shall be present for examination.