1 chs478-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMONS NO.478 OF 2011 IN EXECUTION APPLICATION NO.490 OF 2010 L & T Finance .. Plaintiffs Versus Ropa Plastics Pvt. Ltd. .. Defendants ALONGWITH CHAMBER SUMMONS NO.480 OF 2011 Ms.S.I.Shah i/b. S.I. Shah & Co. for plaintiffs/ claimants Mr.Sugandh B. Deshmukh for defendants/ respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd November 2011. P.C.: 1] This is an application for execution of an award which has been passed in Arbitration Petition No.137 of 2009 in favour of the petitioner. It is stated that this award was made on 11th September 2009 and the defendants are, therefore, liable to make payment of Rs.49,32,568 along with over due interest. 2] It is stated that the petitioner has taken possession of the suit property through Receiver and disposed of the same and recovered a sum of Rs.25,45,000/- of which due credit has been given in the execution application. Now only the balance 2 chs478-11.doc amount of Rs.17 lakhs and odd is claimed. 3] In the execution application itself what has been stated is that the execution proceedings are filed to execute the arbitration award against Ropa Plastics Pvt.Ltd having its office at Gat No.37/2, Village Shirur, Dist. Pune. 4] It is a conceded position that the judgement debtor is carrying on business from this address and all the properties belonging to the judgement debtor are situated outside the jurisdiction of this Court and particularly in the district which is referred to in the cause title. 5] It is in such circumstances that the judgement debtor's Advocate states that no further orders be passed on this application/ chamber summons, particularly when this Court will not be in a position to execute and enforce the decree against the judgement debtors. 6] My attention is invited to section 39 of the Code of Civil 3 chs478-11.doc Procedure and the amendments thereto by introduction of sub- section (4). 7] Reliance is also placed on a judgement of this Court which has been reported in A.I.R. 1985 Bom. 79 (Shaba Yeshwant Naik Vs. Vinodkumar Gosalia & Ors) wherein this Court has held that the Court passing decree cannot attach property outside its local jurisdiction. 8] Reliefs claimed in the chamber summons, according to Ms.Joshi, are not of attaching the properties but to seek particulars thereof and especially by calling upon the judgement debtor to file an affidavit stating particulars of their properties. She states that affidavit that is filed in answer to this chamber summons does not give full particulars of the immovable properties. She invites my attention to the income tax returns and states that if further particulars are set out, that would enable the decree holders to execute the decree by attaching the moveables and immovables belonging to the judgement debtor. 4 chs478-11.doc 9] My attention is invited to Order XXI Rule 41 of CPC and it is submitted that this provision enables this Court to make an order that the judgement debtor or where the judgement debtor is a Corporation, any officer or any other person, to orally examine as to whether any or what debts are owing to the judgement debtor and whether the judgement debtor has any and what other property or means of satisfying the decree and enables this Court to pass an order for the attendance and examination of such judgement debtor or officer or other person or pass an order requiring the judgement debtor or where the judgement debtor is a Corporation, any officer thereof, to make an affidavit stating particulars of the assets of the judgement debtor and if such an order is disobeyed, the consequences are that the officer may be detained in civil prison. She states that this order can be made by this Court on this chamber summons and particularly when the execution application is filed in this Court. 10] On the other hand learned Advocate appearing for 5 chs478-11.doc judgement debtor submits that this provision does not enable the executing court which has no jurisdiction to execute the decree against the judgement debtor whose properties are not situate within its jurisdiction to make any order and by ignoring the mandate of section 39 of the CPC. 11] After having perused the application and the affidavits placed on record and noting the objection that has been made, I am of the opinion that the modes of paying money under the decree that are provided by Order XXI Rule 1 of the CPC envisages as to how the decree for payment of money can be satisfied and then, there are further provisions under the heading “Courts executing decrees” and making of an application for execution. There is a provision providing for making a written application in terms of Order XXI Rule 11. Therefore, what has been provided in this provision is to make an application for execution of a decree and the further steps in execution. To my mind, in the present facts and circumstances on reading of the execution application, it will not be proper to ignore the substantive provisions in part II of the CPC under the 6 chs478-11.doc heading “Execution” with sub-heading “General”. Section 37 of the Code defines the expression “Court” which passed the decree. Section 38 states that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. In terms of section 39(1), the Court which has passed a decree may, on the application of the decree holder, sent it for execution to another court of competent jurisdiction. Clause (a) of Sub-Section (1) states that 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 if such a person has no 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, power can be exercised by the Court which passed the decree on its own motion in terms of section 39(2) of the CPC of sending the application for execution to any sub- ordinate Court of competent jurisdiction. By the amendment inserted by Civil Procedure Code (Amendment) Act, 1976, sub- section (3) of section 39 came to be inserted and it states that 7 chs478-11.doc for the purpose of this section viz., section 39 a Court shall be deemed to be a court, if at the time of making application for the transfer of decree to it, such court would have jurisdiction to try the suit in which such a decree was passed and by insertion of sub-section 4 by CPC (Amendment) Act, 2002 in section 39 with effect from 1st July 2002, it has been provided that nothing in section 39 shall be deemed to authorise the court to execute decree against the properties outside local limits of its jurisdiction. 12] In the instant case if the proceedings in execution initiated by the claimants petitioner are perused, it is apparent that the claim of the petitioner itself is aware that the judgement debtor in this case has no property within the local limits of jurisdiction of this Court. In any event, that is stated to be not clarified and would not be sufficient, therefore, to meet the decree. The decree holder seeks further particulars of such property but in all applications in that behalf states that the judgement debtor is a company which is a private limited company carrying on business from Gat No.37/2, Village Shirur, Dist. Pune. It is more 8 chs478-11.doc or less conceded that the judgement debtor's properties are also situate within the jurisdiction of the competent court at Shirur, Dist. Pune. In these circumstances, it will not be possible to pass any further orders on this chamber summons on the basis that the execution proceedings can be maintained in this court. 13] For all these reasons beyond what has been directed in this chamber summons by this Court, nothing further can be done or directed and particularly as sought by the petitioner – decree holder. The decree holder is at liberty to have the decree executed through competent court under whose jurisdiction the respondent judgement debtor is carrying on business. If the decree holder so desires the registry may remit these execution proceedings and all applications therein to that court so that further steps in execution can be initiated or adopted by the petitioner- decree holder. Both the chamber summons are disposed of in these terms. No costs. (S.C.DHARMADHIKARI, J)