1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.454/2010. 1) Smt.Indrayani w/o Ramdayal Jaiswal and others. - PETITIONERS VERSUS Manager, Nagar Urban Cooperative Bank Ltd., Ahmednagar, Branch Jalna. - RESPONDENT ***** Mr.JC Badve, Advocate for Petitioners; Mr.NV Gavare,Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL,J. DATE : 18th October,2010. PER COURT: 1) Heard learned Counsel for the parties. 2) The Judgment and decree passed by learned Judge, Cooperative Court, Ahmednagar was sought to be executed by way of Regular Darkhast No.25/2003 before the learned Civil Judge, Senior Division at Jalna. The learned Judge did not agree to the objection raised by the judgment debtor about the jurisdiction of the Executing 2 Court since the decree was passed by the learned Judge of the Cooperative Court at Ahmednagar and consequently the order is assailed in the writ. 3) Learned counsel for the petitioners relies to the provisions of Section 39(4) of Civil Procedure Code, which has the import by virtue of the amendment dated 1.7.2002. In support of his further contention, leraned counsel for the petitioners, relies upon the Judgment in the matter of Mohit Bhargava Vs. Bharat Bhushan Bhargava and Ors. reported in 2007 (5) Mh.L.J. 1. The observations in paragraph 5 of the Hon’ble Lordships of the Apex Court are as under : “.........On behalf of the judgment debtor it was pointed out that though normally it is correct to say that the court which passed the decree has the jurisdiction to execute the decree, the moment the decree holder sought to execute such a decree against property lying outside the jurisdiction of that court, Section 39(4) of the Code was attracted and the court was obliged to transfer the decree for execution to the proper court. Section 42 of the Code was referred to. Counsel further contended that earlier, in terms of Section 39(1) of the Code, a discretion was vested in the court, either to proceed with the execution of the decree or to transfer the same to another court 3 as understood by some of the decisions. There was a conflict of judicial opinion. The legislature had therefore stepped in with an amendment in the year 2002 curtailing that discretion and introducing sub-section (4) in Section 39 of the Code making it clear that any attempt of the court to proceed with the execution against a property outside the jurisdiction of that court, would be one without authority and this legislative intent had been properly understood by the High Court when it transferred to the decree to another court 4) There cannot be a question to the legal proposition enunciated by virtue of the amendment and in terms of Section 39(4) of CPC and as indicated by the Hon’ble Lordships of the Apex court. The factual matrix in the present case is certainly reversed to the position indicated in the matter of Mohit Bhargava (cited supra) 5) In the present case, it was a decree passed by the learned Judge of the Cooperative Court at Ahmednagar. The property of the judgment-debtor is situated at Jalna. The decree holder has its branch at Jalna. The decree was sought to be executed since the property was situated at Jalna. One should not be oblivious that it was not a decree of a Civil Court. the position is clearly explained by the learned 4 Single Judge in the matter of Onkar Rajaram Wathodkar Vs. Ramnarayan Khatod and Sons, reported in 1984 BCI (O) 42, which reads as under : “... Thus, it is obvious if we read section 98 and Rule 83 cited supra that the choice of forum is of the party and not of the Registrar. It is open for the party in whose favour the award has been passed to select a particular forum of execution. Whenever a certificate is issued by the Registrar, it merely enables the party to take out execution through an application to the court of local jurisdiction wherein the judgment-debtor resides or carries on business or personally works for gain. Hence the Civil Judge, Senior Division, Amravati having the jurisdiction to entertain the original suit has every power and jurisdiction to entertain the present execution application (Joining to it directly, it is not at all necessary to bring the execution to the Amravati Court with a transfer certificate from Ahmednagar Court. The contention of the learned Counsel for the revision applicant that the decree holder should have filed execution application at Ahmadnagar Court and then got it transferred to Amravati cannot be accepted being without substance.” 6) The factual matrix more or less akin to what is indicated in the matter of Onkar 5 Wathodkar (cited supra). 7) Consequently, the order under challenge does not call for any interference. The learned Judge was justified in rejecting the objection raised by the judgment-debtor. 8) The Writ Petition lacks merit, dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/