*1* CHS-1765-10-Group.sxw Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1765 OF 2010 IN EXECUTION APPLICATION (LODG.) NO.1391 OF 2010 IN ARBITRATION CASE NO.137 OF 2009 ALONG WITH CHAMBER SUMMONS NO.1766 OF 2010 IN EXECUTION APPLICATION (LODG.) NO.1392 OF 2010 IN ARBITRATION CASE NO.140 OF 2009 AND CHAMBER SUMMONS NO.1767 OF 2010 IN EXECUTION APPLICATION (LODG.) NO.1393 OF 2010 IN ARBITRATION CASE NO.139 OF 2009 L & T Finance Ltd., Mumbai ... Claimants/Plaintiffs/ Decree Holders V/s. Pravin Pandurang Patil ... Defendant Ms. S.S. Shah, i/b. M/s. S.P. Joshi & Co., for the Plaintiffs/ Claimants/Decree Holders in all these Chamber Summonses. Ms. Manjiri S. Parasnis for the Defendant in CHS/1765/2010. CORAM : S.C. DHARMADHIKARI, J. DATE : 19 th December, 2011. P.C. : 1. This Chamber Summons, being Chamber Summons No.1765 of 2010, moved on 1st December, 2010, is by the original Claimants/Plaintiffs/Decree Holders seeking the following reliefs :- *2* CHS-1765-10-Group.sxw “(a). that the order dated 08.05.2009 passed by this Hon’ble Court in Arbitration Petition being No.212 of 2009 be continued in the Execution Application; (b). that the Defendant abovenamed be required by an order of this Hon’ble Court to file his Affidavit stating particulars of his properties etc., as provided under Order 21 Rule 41, Sub-Rule 2 of the Code of Civil Procedure, 1908 since the Decree/Award dated 18.08.2009 passed by the Learned Arbitral Tribunal has remained unsatisfied for more than 30 days from the date of its passing.” 2. It is submitted in the affidavit-in-support of this Chamber Summons that the claim of the Plaintiffs was referred for arbitration of a sole Arbitrator at Bombay and he made his Award at Bombay on 18th August, 2009. Under this Award, the Defendant was directed to pay to the Plaintiffs a sum of Rs.79,56,774.73 with further interest. It is stated that a copy of this Award is annexed as Annexure-A to the affidavit-in-support. It is stated that, prior to the Award, a Petition under Section 9 of the Arbitration and Conciliation Act, 1996, was moved, being Arbitration Petition No.212 of 2009, and therein an order came to be passed on 8th May, 2009, appointing Court Receiver, High Court, Bombay, as a Receiver, with all powers of the Code of Civil Procedure, 1908, (hereinafter referred to as “the CPC”), of an equipment, which was hypothecated with the Plaintiffs and more particularly described in Exhibit ’E’ to that Petition. It is stated that this order be continued until this Chamber Summons is disposed off. 3. In the light of this order, it is necessary to direct the Defendant to disclose the exact location of the suit Excavator and also disclose his immovable properties so that in terms of the provisions of Section 51 of the CPC, the decree can be put in execution. 4. On this Chamber Summons, an order has been passed on 14th June, 2011 by this Court directing that the order dated 8th May, 2009 be continued and *3* CHS-1765-10-Group.sxw that the Defendant should disclose on affidavit particulars of his properties, as provided by Order XXI Rule 41(2) of the CPC since the decree has remained unsatisfied for a period of more than 30 days from the date of its passing. 5. The Chamber Summons was duly served on the Defendant and instead of complying with the order of this Court dated 14th June, 2011, what has been argued before me on behalf of the Defendant is that the Chamber Summons is not maintainable because this Court cannot execute the decree in terms of this Award. It is submitted by Ms. Parasnis, the learned Advocate appearing on behalf of the Defendant, that the Chamber Summons is filed in an Execution Application. The Execution Application is to enforce the Award made by the Sole Arbitrator dated 18th August, 2009. That Award of the Sole Arbitrator can be enforced as a decree in terms of Section 36 of the Arbitration and Conciliation Act, 1996, provided the “Court” that is contemplated therein is satisfying the requirement of Section 2(e) of the Arbitration and Conciliation Act, 1996. In the instant case, the Defendant was never carrying on business or residing within the territorial limits of this Court. The cause of action, on the basis of which the Award has been made, has also not arisen within the territorial jurisdiction of this Court. Only reason why Execution Application is filed in this Court is because the Arbitral Tribunal held its hearing at Mumbai and the Award is made at Mumbai. However, if the subject matter of the arbitration is incapable of being resolved by a Suit filed in this Court, then, the Award cannot be executed by this Court. The executing court must also meet the same requirements as are stipulated by Section 2(e) of the Arbitration and Conciliation Act, 1996. 6. In any event and without prejudice to the above contentions, it is contended by Ms. Parasnis that on 1st July, 2002, the Civil Procedure Code (Amendment) Act has been brought into force. The amendments that are made in the CPC are comprehensive and one of them is to Section 39 thereof. Sub- section (4) has been added to this section w.e.f. 1st July, 2002 and it states that *4* CHS-1765-10-Group.sxw ‘nothing in Section 39 shall be deemed to authorize the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction’. From the title to this Chamber Summons and the Execution Application, it is clear that the Defendant Pravin Pandurang Patil is neither residing within the territorial limits of this Court, nor working for gain or carrying on business within the said limits, then, the decree cannot be executed against him or his properties, which are also not available within the jurisdiction of this Court. This Court has no option, but to transfer and transmit the decree for execution to a Competent Court. Once that is the mandate knowing from Section 39(4) that no order on this Chamber Summons and particularly directing filing of an affidavit by the Defendant disclosing the properties and particulars of his Assets can be passed. That is nothing but a power to be exercised in execution of a decree. If the execution itself is impermissible in case of properties located beyond the territorial jurisdiction of this Court, then, the Chamber Summons also cannot be entertained. For all these reasons, she submits that this Chamber Summons deserves to be dismissed. 7. On the other hand, Ms. Joshi, the learned Counsel appearing on behalf of the Plaintiffs, while countering these submissions, submits that Order XXI Rule 41 of the CPC is clear. Even if an application for execution is made, or, the same is not made or filed, a decree which is sought to be executed by attaching the movable and immovable properties permits the decree holder to apply to the Court under Order XXI Rule 41(1) of the CPC. Under Order XXI Rule 41(2) and sub-rule (3) thereof state that in case of any order made under sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in the civil prison. She submits that the wording of this sub-rule (2) is indicative of the legislative intent. An application seeking particulars of the assets and properties of a Judgment-Debtor can be made by a decree holder holding a decree for payment of money to a Court which passed the decree and it can *5* CHS-1765-10-Group.sxw also be made to a Court to which the proceeding is transferred. Order XXI Rule 41 is a proceeding in aid of execution. Today, Order XXI Rule 11 has been invoked by the Plaintiffs and they have made a written application seeking to execute the decree for payment of money. The Award is now enforceable as a decree of a Civil Court. Once it is so enforceable, then, the Court’s assistance can be sought for, either putting the Judgment-Debtor in civil prison or by attaching his movable and immovable properties. For seeking particulars of his properties prior to such attachment, an application can be made to both Courts, as set out in Order XXI Rule 41(3) of CPC. Therefore, it is not as if either this Chamber Summons is not maintainable or that this Court has no jurisdiction to enforce the decree or that the order made by this Court on the Chamber Summons is null and void. Ms. Joshi invites my attention to Section 51 of the CPC and submits that the decree holder in this case is not applying for transfer of decree. The decree holder seeks to enforce the decree by seeking to invoke this Court’s powers under Section 51 of the CPC by appointing a Receiver. She invites my attention to Section 51(d) and submits that there is no limitation on the power and a Receiver can be appointed in execution of any property, even if the same is located beyond the territorial jurisdiction of this Court. The properties may be located outside the local limits of this Court’s jurisdiction does not mean that a Receiver cannot go and attach them and take possession of the same. In such circumstances, she submits that the objection to the jurisdiction of this Court be overruled. 8. Ms. Parasnis has relied upon several decisions of the Hon’ble Supreme Court of India and that of the Calcutta High Court and Delhi High Court, whereas Ms. Joshi has relied on the following decisions : (i). United Phosphorous Ltd. V/s. A.K. Kanoria, reported in 2003 (1) BCR 299. *6* CHS-1765-10-Group.sxw (ii). Chandra Chems, Mumbai Vs. Verma Mukherjee (P) Ltd., reported in 2007 (5) Mh.L.J. 722. (iii). ICICI Ltd. (Debenture Trustees) Vs. Kothri Industrial Corporation Ltd. & Ors. & Prithviraj Infrastructure P. Ltd., Hyderabad, reported in 2005 (5) Bom.C.R. 213. (iv). R. Daga & Anr. Vs. MR & DR Thacker & Co. & Mahendra R. Thacker, reported in 2004 (6) Bom.C.R. 280. 9. For properly appreciating these contentions, a reference is necessary to the relevant provisions of the CPC. The CPC has substantive as well as procedural provisions. Part II of the CPC is entitled “Execution” and with a sub- heading “General”. It provides for application of Part II of Code and particularly relating to the execution of decrees so far as they may be applicable to execution of orders. Section 37 defines the term “Court” which passed a decree, whereas Section 38 says that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section 39 of the CPC reads as under : “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 personally works for gain, within the local limits of the jurisdiction of such other Court, or (b). if such person has not property *7* CHS-1765-10-Group.sxw 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 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 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.” 10. Section 39 is entitled “Transfer of decree”, whereas Section 40 provides for transfer of decree to Court in another State. Section 41 provides for result of execution proceedings to be certified, whereas Section 42 sets out the powers of Court in executing transferred decree. Then comes Section 43, which enables execution of decrees passed by Civil Courts in places to which the CPC *8* CHS-1765-10-Group.sxw does not extend. Section 44 provides for execution of decrees passed by Revenue Courts in places to which the CPC does not extend, whereas Section 44-A enables execution of decrees passed by Courts in reciprocating territory. Section 45 deals with execution of decrees outside India and Section 46 is entitled “Precepts”. Section 47 enables an Executing Court to determine questions enumerated therein, whereas the other provisions in the very part provide for decree to be executed against transferors and legal representatives. Then comes Section 51, which reads as under :- “51. Powers of Court to enforce execution - Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree - (a). by delivery of any property specifically decreed; (b). by attachment and sale or by sale without attachment of any property; (c). by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d). by appointing a receiver; or (e). in such other manner as the nature of the relief granted may require: by detention in prison shall not be ordered unless, after giving the judgment- debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied - (a). that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,- (i). is likely to abscond or leave the local limits of the jurisdiction of the Court, or *9* CHS-1765-10-Group.sxw (ii). has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b). that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same; or (c). that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.” 11. Sections 52, 53 and 54 enable enforcement of decree against legal representatives, liabilities of ancestral property in execution and on partition or separation of share. The subsequent provisions appearing under the heading “Arrest and Detention” are Sections 55 to 59, whereas Sections 60 appears under the heading “Attachment”. The other provisions under it need not be referred to in details. 12. As far as Order XXI of the CPC to which my attention has been extensively invited, that is dealing with the execution of decrees and orders. First portion thereof deals with payment under decree. Then comes another heading, under which several provisions appear, and that is “Courts executing decrees”. Order XXI Rule 3 states that where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell such estate or tenure. Order XXI Rule 4 of the CPC enables transfer to Court of Small Causes and Order XXI Rule 5 sets out the mode of transfer. Order XXI Rule 6 provides for procedure where a Court desires that its own decree shall be executed by another Court and there are further provisions then enabling that Court to execute the *10* CHS-1765-10-Group.sxw decree. Order XXI Rule 10 falls under the heading “application for execution” and Order XXI Rule 11 provides for, both, an oral as well as written application for execution of a decree. Order XXI Rule 11 sub-rule (2)(j) reads as under :- “11. Oral application – (1) ................................................................................. (2) Written application – Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely - (a) to (i). ................................................................... (j). the mode in which the assistance of the Court is required, whether- (i). by the delivery of any property specifically decreed; (ii). by the attachment, or by the attachment and sale, or by the sale without attachment, of any property; (iii). by the arrest and detention in prison of any person; (iv). By the appointment of a receiver; (v). otherwise, as the nature of the relief granted may require.” 13. In the instant case, what is being argued is that the mode in which the assistance of the Court is required for execution of the decree is by attachment or by attachment and sale or by the sale without attachment of any property of the Judgment-Debtor. *11* CHS-1765-10-Group.sxw 14. It is argued that the subsequent provisions of the Order XXI, which are material as far as this aspect is concerned, is Order XXI Rule 13, which reads as under :- “13. Application for attachment of immovable property to contain certain particulars – Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot - (a). a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers, and (b). a specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.” 15. It is then contended that Order XXI Rule 17 sets out the procedure on receiving the application for execution of decree and the provisions thereafter enable the Court to take steps so that a process for execution can be issued under Order XXI Rule 24. Order XXI Rule 26 and subsequent provisions thereto appear under the heading “stay of execution”, whereas Order XXI Rule 30 is appearing under the sub-heading “mode of execution”. Order XXI Rule 30 states that decree for payment of money including a decree for payment of money as an alternative to some other relief, may be executed by the detention in the civil prison of the Judgment-Debtor, or by the attachment and sale of the property, or by both. Various decrees can be executed and that is contemplated by Order XXI Rules 31 to 36. Order XXI Rule 37 deals with arrest and detention in the civil prison. Order XXI Rule 41 appearing under the sub-heading “attachment of property”, reads as under :- *12* CHS-1765-10-Group.sxw “41. Examination of judgment-debtor as to his property - (1). Where a decree is for the payment of money the decree-holder may apply to the court for an order that - (a). the judgment-debtor, or (b). where the judgment-debtor is a corporation, any officer thereof, or (c). any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment- debtor, or officer or other person, and for the production of any books or documents. (2). Where a decree for the payment of money has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree- holder and without prejudice to its power under sub-rule (1), by order require the judgment- debtor or where the judgment-debtor is a corporation, any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor. (3). In case of disobedience of any order made under sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release.” 16. As far as the Arbitration and Conciliation Act, 1996, is concerned, its provisions are clear. The Award made under that Act becomes final and enforceable and Sections 35 and 36 deal with that aspect. Section 36 states that where the time for making an application to set aside the Arbitral Award *13* CHS-1765-10-Group.sxw under Section 34 has expired, or such application having been made, it has been refused, the Award shall be enforced under the Code of Civil Procedure, 1908, in the same manner as if it was a decree of the Court. 17. The word “Court” is defined in Section 2(1)(e) of the Arbitration and Conciliation Act, 1996, which reads thus :- “2. Definitions – (1) In this Part, unless the context otherwise requires - (a). to (d). .................................................................... (e). “Court” means the principal civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject- matter of a suit, but does not include any civil Court of a grade inferior to such principal civil Court, or any Court of Small Causes.” 18. The argument of Ms. Parasnis is that the venue of the arbitration was at Bombay, according to the Plaintiffs, and the Award has been made at Bombay and, therefore, as per the Plaintiff’s, the application for enforcement of such an Award can be made to this Court as if it is a decree of this Court. However, if the Award is to be enforced as a decree by this Court in the same manner under the Code of Civil Procedure, 1908, then, the decree must not be without jurisdiction. The decree to be within jurisdiction of this Court in this case would be if the Suit in which it has been passed is capable of being instituted in this Court. Therefore, according to her, at this stage I must hold as to whether this Court has jurisdiction to decide the questions forming the subject matter of arbitration, if the same had been the subject matter of a Suit, and only on this satisfaction, I must proceed to enforce this Award. Merely because the Award is filed in this Court for execution does not mean that the Court *14* CHS-1765-10-Group.sxw shall proceed to execute it, is her submission. 19. I am unable to accept this submission for more than one reason; firstly, the Award is dated 18th August, 2009. It has become final and enforceable because it has not been challenged in terms of the statutory provision, namely, Section 34. Secondly, the decree to be termed without jurisdiction is an objection, which must be decided by looking at the Decree and holding it to be without jurisdiction or a nullity. That it is a nullity or without jurisdiction is an objection which can be raised in execution, but that objection can be decided only by looking at the decree or Award. If it requires an elaborate process of reasoning and going behind the decree or the Award in this case, then, it cannot be accepted. In this case if