Sumermal Surana vs Premlata Kakrania

Nadira Patherya, J.—The only issue that arises for consideration is whether the judgment debtor could have been called for examination when she resides outside the jurisdiction of this Court. Section 39(4) CPC is contained in Part I of the CPC which contains the substantive law while the Rules and Orders is to be found in Part II CPC which deals with the procedure to be followed in execution. As Section 39(4) CPC bars execution against person or property and Order 21 Rule 41(1) and 41(2) lays the procedure for execution under Part II the bar imposed by the substantive provisions of law cannot be overridden by the Rules. Reliance is placed on Mechano Paper Machines Ltd. Vs. NEPC Papers and Boards Ltd. and Others, and Smt. Madvai Ahluwalia Vs. Vimal Kumar Gupta and Others, . Inherent lack of jurisdiction cannot be waived or acquiesced and therefore no order can be passed on this application.

Counsel for the decree holder submits that the examination has been made in aid of execution of decree. It is not execution itself Smt. Madvai Ahluwalia Vs. Vimal Kumar Gupta and Others, is distinguishable on facts. Section 21(3) CPC makes it clear that at the first opportunity an objection must be raised. Rs. 50,000/- has been paid pursuant to order dated 14.6.2013. It is not a case of inherent lack of jurisdiction as held in Seth Hiralal Patni Vs. Sri Kali Nath, to make the execution application a nullity. There is no bar to grant of injunction therefore such orders can be passed and thereafter the execution proceedings transferred. The conduct of the parties must be considered. An injunction has been passed against the judgment debtor from operating the bank accounts which is in keeping with Mohit Bhargava Vs. Bharat Bhushan Bhargava and Others, and Mechano Paper Machines Ltd. Vs. NEPC Papers and Boards Ltd. and Others, . The decree passed is a consent decree with interest at 7% p.a. The said amount of interest was granted in the belief that payment will be made as directed and although an appeal was filed from the consent decree the same was dismissed. There is no receiver appointed. In the decision reported in Mechano Paper Machines Ltd. Vs. NEPC Papers and Boards Ltd. and Others, examination was not in issue. Therefore orders be passed as sought.

Having considered the submissions of the parties E.C. 53 of 2013 was filed for execution of the consent decree dated 24.9.2012. In the said execution application the decree-holder sought for oral examination of the judgment debtors under Order 21 Rule 41(1) of the CPC and for filing of an affidavit of asset by the judgment debtor or its officers under Order 21 Rule 41(2) CPC. By order dated 12.6.2013 the officer of the judgment debtor viz. the proprietor was asked to be personally present on the next day as counsel for the judgment debtor expressed inability on the part of the judgment debtor to liquidate the decretal dues. By the consent decree dated 24.9.2012 the judgment debtor had agreed to make payment in 3 instalments beginning October, 2012. The decree would have been satisfied in December, 2012 but for the non-payment by the judgment debtor. It was only to verify the submission made by counsel for the judgment debtor that the proprietor of Prateek Industries was directed to be present in Court on 14.6.2013 to be orally examined. This under Order 21 Rule 41(1) CPC the Court was empowered to do but the issue that has arisen for consideration is that in view of Section 39(4) CPC could the Court have called the judgment debtor or its proprietor both of whom are outside the local limits of the Court for examination.

Section 39(4) CPC reads as follows:-

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.

Therefore it is execution of such decree which is barred. By directing oral examination of a judgment debtor or its officers the decree is not being executed. It may be a step in executing the decree but it is surely not execution of decree. Therefore at the stage of examination under Order 21 Rule 41(1) or filing of affidavit of asset under Order 21 Rule 41(2) the bar of Section 39(4) CPC will not operate.

By the oral examination of the judgment debtor or its officers or filing of affidavit of assets, all that is being done is that an enquiry is being made to ascertain the assets of the judgment debtor. No action is being taken for execution of decree. It is only after the assets have been identified that the machinery for execution of decree can be set in motion.

Section 39 of the CPC deals with transfer of decree and Section 39(4) CPC imposes a bar under the said Section to execution of decree against person or property outside. Although the decree is to be executed against the judgment debtor but no execution is being effected against the judgment debtor or against the property of the proprietor and the bar of Section 39(4) CPC cannot prevent examination of the judgment debtor. Therefore the contention of the judgment debtor cannot be accepted and is rejected.

8 Smt. Madvai Ahluwalia Vs. Vimal Kumar Gupta and Others, so also Mechano Paper Machines Ltd. Vs. NEPC Papers and Boards Ltd. and Others, will not apply to the facts of this case as in the instant case no Receiver has been appointed nor order of injunction passed. In view of the aforesaid G.A. 1743 of 2013 is dismissed.