1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.875 OF 2002 Vijay s/o Dhanraji Nikam age 35 years, occup.service r/o Visapur Jail Beggers Home, Visapur, Taluka Shrigonda, Petitioner/orig District Ahmednagar. deft/judgment debtor. versus Sow Nirmala w/o Vijay Nikam age 30 years, occup.household, r/of c/o Kundlik Sukhdeo Bharud, age post Wari, Taluka Kopargaon, Respondent/ori. District Ahmednagar. Plaintiff/ decree holder. -------- Shri V.S.Bedre, Advocate, for the Applicant. Shri S.S.Kulkarni, Advocate, for Respondent. 2 Coram: P.R. Borkar J. Date : August 17,2009. ORAL JUDGMENT 01. This civil revision application is directed against the order passed on 16-1-2002 by learned Joint Civil Judge, Junior Division, Ahmednagar in Regular Darkhast No.111 of 1999 below Exhibit 1. 02. Briefly stated, the facts are that the appellant and the respondent are husband and wife. They married in 1983 and though they cohabited together till 1993, thereafter there were disputes and differences between them. Respondent-wife filed Special Civil Suit No.3 of 1996 for maintenance in the Court of Civil Judge, Senior Division, Kopargaon. The suit was decreed on 16.12.1998 and maintenance of Rs.1000/= p.m.was granted to the respondent wife. For execution of that decree, Regular Darkhast was filed in the Court of Civil Judge, Senior Division, Kopargaon which came to be transferred to the court of Civil Judge, Senior Division, Ahmednagar as at that time present appellant-judgment debtor was residing and serving at Shrigonda which was within territorial jurisdiction of latter. Thereafter the pecuniary jurisdiction of the Civil Judge, 3 Senior Division and that of Civil Judge, Junior Division, were raised and in view of this change in pecuniary jurisdiction, Regular Darkhast came to be transferred from the Court of Civil Judge, Senior Division, Ahmednagar to the Court of Civil Judge, Junior Division, Ahmednagar. 03. Application Exhibit 22 was filed by the decree holder-wife before Joint Civil Jude, Senior Division, Ahmednagar in Regular Darkhast No. 111/1999 stating that she resides at Kopargaon and it was difficult for her to come from Kopargaon to Ahmednagar and so she prayed that Darkhast proceedings be transferred to the Court of Civil Judge, Senior Division at Kopargaon. Application Exh.22 was decided by learned Joint Civil Judge, Junior Division, Ahmednagar on 12.10.2001 and directed that the Regular Darkhast No.111/1999 be transferred to the Court of Civil Judge, Senior Division, Ahmednagar for passing appropriate order as at that time judgment debtor was residing within the jurisdictional limits of Civil Judge, Junior Division, Shrigonda. It appears that, learned Civil Judge, Senior Division, Ahmednagar had some correspondence with the District Court and by order dated 11.1.2002, the learned District Judge directed the Joint Civil Judge, Junior Division, Ahmednagar to decide the point of jurisdiction as preliminary issue and then impugned order came to be passed by Joint Civil 4 Judge, Junior Division, Ahmednagar on 16.1.2002 below Exhibit 1 in Regular Darkhast No.111 of 1999. By the order dated 16.1.2002, learned Civil Judge, Junior Division, Ahmednagar referred to above said history and came to a conclusion that it had the jurisdiction. It is this order which challenged in present revision application. 04. Heard learned Advocate Shri V.S.Bedre, for the applicant and Shri S.S.Kulkarni Advocate for the respondent. 05. A reference to Section 38 and 39 of the Code of Civil Procedure, 1908, would be relevant. Sections 38 and 39 read thus; 38.Court by which decree may be executed- A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. 39.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 5 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 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 sale 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 it own motion send it for execution to any subordinate Court of competent jurisdiction. (3) For the purpose of this section, a Court shall be deemed to be a Court of competence jurisdiction if, at the time 6 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. " 06. It is submitted before me that presently appellant-husband is no more serving at Shrigonda and is transferred to Pune where he is residing and serving. Therefore, having regard to Sections 38 and 39 of C.P.C. quoted above, particularly sub-section (4) of Section 39, there is no point in transferring the decree for execution to the court of Civil Judge, Junior Division, Shrigonda. It is not the case of the respondent-decree holder-wife that the appellant has any property at Shirgonda. The appellant was residing at Shrigonda as he was serving there and, therefore, when the order was passed by Civil Judge, Senior Division, Ahmednagar, it was submitted that the said court at Shrigonda would have jurisdiction. Admittedly, appellant-judgment debtor never resided or served within the territorial jurisdiction of Civil Judge, Junior Division, Ahmednagar. He has also no property within the territorial jurisdiction of the Jt. Civil Judge, Junior Division, Ahmednagar and, therefore, the said court has no more jurisdiction and will not be in a position to execute the decree, in view of section 39 of C.P.C. 7 07. At this stage, Advocate Shri S.S.Kulkarni for Respondent-decree holder submitted that the appellant-judgment debtor has some ancestral property within the limits of Civil Judge, Senior Division, Kopargaon which court originally passed the decree. 09. In view of above, civil revision application is partly allowed. It is directed that Regular Darkhast No.111 of 1999 pending on the file of Joint Civil Judge, Junior Division, Ahmendagar, be transferred to the court of Civil Judge, Senior Division, Kopargaon for execution. pnd/cra875.02 (P.R.BORKAR, J.)