AI Structured Summary
Not yet generated for this judgment
Judgment
Narendra Nath Tiwari, J.—In this writ application the petitioner has prayed for quashing the order dated 17.1.06 passed by learned Court below whereby the petitioner''s application filed u/s 39 of the C.P.C seeking transfer of the decree from the Court of Sub-Judge, Chaibasa to the Court of learned District Judge, Alipore South, 24 Parganas (West Bengal), has been rejected on the ground that the application u/s 39 C.P.C is prematured and incomplete. The learned Court below is of the view that since no execution petition has been filed in the Court as yet and nothing has been stated about any property of the defendant situated within the State of Jharkhand, there is no occasion for the petition u/s 39 C.P.C.
Mr. B.L. Jain, learned Sr. counsel appearing on behalf of the petitioner, submitted that the order of learned Court below is contrary to the provisions of Section 39 of the C.P.C. The petitioner filed an application under the provisions of Section 39 C.P.C for transfer of the decree for execution to the Court at Alipore as the judgment debtor has no immovable/movable property within the jurisdiction of the Court of learned Sub-Judge at Chaibasa out of which the decree can be satisfied. The respondent has their Head office and Bank Account at Calcutta within the jurisdiction of learned District Judge, Alipore and as such, the decree can be effectively executed and satisfied, if the same is transferred to that Court. He submitted that the Court below has misconstrued the provisions of Section 39 C.P.C in observing that pendency of an application for execution is the condition precedent for passing an order of transfer of decree u/s 39 of the C.P.C. Learned Counsel submitted that the provision simply provides for transfer of the decree and not the execution case and as such no application for execution is required to be filed before making an application u/s 39 C.P.C for transfer of the decree for execution to any other Court. Learned Counsel drew attention of the Court on the provisions of Sections 40 & 42 of the CPC and submitted that none of the said provisions contemplates pendency of an application for execution in the Court before making an application u/s 39 of the C.P.C.
Mr. Indrajeet Sinha, learned Counsel appearing on behalf of the respondent, on the other hand, supported the impugned order and submitted that the Court can exercise Its power u/s 39 If an application for execution of the decree is filed in that Court. For the purpose of exercising the said jurisdiction it is necessary that an application for execution is filed and pending before the Court. Learned Counsel referred to the provisions of Order XXI Rules 5 & 6 and submitted that the Rules 5 & 6 are preceded by Rules 1, 2, 3 & 4 and the same are under the chapter of Execution and as such before an application for execution is filed, the decree can not be transferred to any other Court for execution.
In order to appreciate rival contentions of the parties it is necessary to see the relevant provisions of law. Section 39 of the C.P.C provides for transfer of the decree which runs as follows:
Transfer of decree - (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction.
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) If such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the safe or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
(d) If the Court which passed the decree considers for any other reason, which it shall record In writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent Jurisdiction.
(3) For the purposes of this Section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.
(4) Nothing in this Section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.
Order XXI Rule 5 provides for mode of transfer and Rule 6 of the said Order provides for procedure where the Court desires that its own decree be executed by another Court. The said Rules run as thus:
Mode of Transfer - Where a decree is to be sent for execution to another Court, the Court which passed such decree shall send the decree directly to such other Court whether or not such other Court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction.
Procedure where Court desires that its own decree shall be executed by another Court - The Court sending a decree for execution shall send-
(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and
(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.
From bare reading of the said provisions, it is clear that the application u/s 39 C.P.C provides for transfer of decree and not the execution proceeding. The Court which passed the decree may send the same for execution to another Court of competent jurisdiction on an application for transfer of that decree by the decree holder under the condition(s) enumerated in Section 39 of the C.P.C. The procedure for such transfer is provided under Order XXI Rules 5 & 6 which also speak of the sending the decree and not the execution case or application for execution. The purpose for filing an application u/s 39 C.P.C is to make the transferee Court aware of certain information which is to be furnished by the Court in which the application for transfer is filed which amongst others is a certificate setting forth the fact that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, in case, the decree has been executed in part, the extent to which satisfaction has been obtained and the part of the decree remains unsatisfied, a copy of the order for the execution of the decree, or, if no such order has been made, a certificate to that effect. The provisions of Rule 6 of Order XXI i.e. Clause (c) of Rule 6 makes it clear that if no order is passed in execution, the Court is required to give a certificate to that effect. From the said provisions, it is clear that it is not necessary to file an application for execution of the decree In the Court which passed the decree, before filing an application u/s 39 C.P.C for transfer of the decree to any other Court for execution. The provisions for filing an application for execution begins from Rule 10 of Order XXI. The provisions of Rules 5 & 6 precede the said provision contained in Rule 10 from which also it logically implies that an application for transfer of the decree can be made and entertained before filing the application for execution. Order of transfer can be made in accordance with the provisions of Rules 5 & 6 of Order XXI even before reaching the stage of Rule 10 of Order XXI i.e. before an application for execution of the decree is filed. In my considered view, it is not necessary to file an application or levy execution in the Court which passed the decree before making an application for transfer of the decree for execution to any other Court u/s 39 C.P.C. The application for transfer u/s 39 C.P.C cannot be rejected on the ground that execution case is not filed or pending before the Court which passed the decree. Learned Court below has, thus, committed an error in holding that the application u/s 39 C.P.C filed by the petitioner is prematured as no execution case is pending before that Court. The impugned order being not in accordance with law is unsustainable and the same is hereby quashed. This writ application is allowed. The Court below shall proceed with the petitioner''s application filed u/s 39 C.P.C in accordance with law.