IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 22637 OF 2008(T) -------------------------- AGAINST THE ORDER DATED IN EP 142/06 IN OS.486/1996 of ADDL.MUNSIFF COURT, PATHANAMTHITTA. .................... PETITIONER: ------------ P.N.SREEKUMARAN NAIR, S/O. NARAYANA PILLAI, PUTHIYA VEETTIL, KANJEETTUKARA MURI, AYROOR VILLAGE. BY ADV. SRI.S.MOHANAN RESPONDENTS: ----------------- 1. DHANALAKSHMY BANK REPRESENTED BY ITS BRANCH MANAGER, PATHANAMTHITTA. 2. SREEKANTAN NAIR, S/O. KRISHNAN NAIR, SREEKANDATHU VEEDU, KAITHAVANA MURI, ALAPPUZHA VILLAGE. 3. P.K.PRASANNAN NAIR, S/O.KUNJUNNIKURUP, PRASEETHA BHAVAN, AREEKARA MURI, MULAKKUZHA VILLAGE. BY ADV. SRI.C.K.KARUNAKARAN,SC FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 22637 OF 2008 ------------------------------------------ Dated this the 29th day of August, 2008 JUDGMENT When the Court which passed a decree, on an application filed by the decree holder transfers the decree for execution against one of the judgment debtors to another Court, whether the transferee Court has jurisdiction to execute the decree as against the other judgment debtors. Even if it is possible to execute the decree as against all the judgment debtors by the transferee Court, whether salary of a judgment debtor could be attached by that Court, when the disbursing officer of the judgment debtor is not within the jurisdiction of that Court and when judgment debtor is not an employee of the State or Central Government or railway company or corporation engaged in trade or industry established by Central, Provincial or State Act. 2. Facts are not disputed. First respondent Bank instituted O.S.486 of 1996 before Munsiff Court, Pathanamthitta for realisation of the amount due. A decree for realisation of amount claimed in the suit was granted jointly and severally WP(C)22637/08 2 against all the three defendants, on 30.7.1997. Decree holder filed E.P. 29 of 2005 before Munsiff Court, Pathanamthitta to issue notice under Rule 22 and to transfer the decree to Munsiff Court, Alappuzha for execution of the decree as against first judgment debtor. Notice was issued only to first judgment debtor. As per Ext.P1 order dated 11.8.2005, after serving notice on the first judgment debtor, execution petition was allowed and the decree as against first judgment debtor was transferred to Munsiff Court, Alappuzha as he is residing within the jurisdiction of that Court. The other judgment debtors are residing and employed within the jurisdiction of Munsiff Court, Pathanamthitta. The decree holder thereafter filed Ext.P2 petition (E.P.142 of 2006) before Munsiff Court, Alappuzha for execution as against the first judgment debtor by attachment and sale of his property and to issue notice under Rule 37 for his arrest and detention. But judgment debtors 2 and 3 were also impleaded as respondents 2 and 3 in that execution petition. A prayer was also incorporated to serve Rule 22 notice on them. Notice was served. Decree holder thereafter produced a schedule for attachment of their salary and sought order of attachment. As per Ext.P3 order dated 27.11.2007, executing WP(C)22637/08 3 Court ordered attachment of the salary of third judgment debtor to the extent of Rs.2,000/- or the maximum attachable portion of the salary as per Rules, whichever is less, for a period of 24 months. Third judgment debtor filed this petition under Article 227 of Constitution of India challenging Ext.P3 order. Petitioner contended that Munsiff Court, Alappuzha has no jurisdiction to execute the decree as against him, as the decree as against him was not transferred to that Court when only as against first judgment debtor the decree was transferred. It was also contended that in any event Munsiff Court, Alappuzha has no jurisdiction to attach the salary of the petitioner, who is not residing or employed within the local limits of that Court and therefore Ext.P3 order is illegal and is to be quashed. 3. Learned Counsel appearing for petitioner and first respondent decree holder were heard. 4. Section 38 of Code of Civil Procedure provide the Court by which a decree is to be executed. A decree can be executed by the Court which passed the decree or to which it is sent for execution. Section 39 of the Code provides for transfer of the decree for execution. Under sub rule (1), the Court which passed a decree may send the decree for execution to another WP(C)22637/08 4 Court of competent jurisdiction, 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 jurisdiction of such other Court, or if such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient enough to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or 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 if the Court which passed the decree considers for any other reason to be recorded in writing that the decree should be executed by such other Court. Sub rule (2) enables the Court which passed a decree on its own motion to send the decree for execution to any subordinate Court of competent jurisdiction. Sub rule (3) provides that a Court shall be deemed to be a Court of competent jurisdiction for the purpose of section 39, if at the time of making the application for transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. Sub rule (4) provides that nothing in section 39 shall be deemed to authorise the Court which passed a WP(C)22637/08 5 decree, to execute such decree against any person or property outside the local limits of its jurisdiction. Sub rule (4) was inserted by Amendment Act 22 of 2002, which came into effect with effect from 1.7.2002. The object and reasons for enacting sub rule (4) reveals that the amendment is clarificatory in nature. 5. Apex Court in Salem Advocate Bar Association v. Union of India (2005 (6) SCC 344) analysing the reason for enactment of Section 39 held:- “ 22. Section 39(1) of the Code provides that the court which passed a decree may, on the application of the decree holder send it for execution to another court of competent jurisdiction. By Act 22 of 2002, Section 39(4) has been inserted providing that nothing in the 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. The question is whether this newly added provision prohibits the executing court from WP(C)22637/08 6 executing a decree against a person or property outside its jurisdiction and whether this provision overrides Order 21 Rule 3 and Order 21 Rule 48 or whether these provisions continue to be an exception to section 39(4) as was the legal position before the amendment. 23. Order 21 Rule 3 provides 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 the entire estate or tenure. Likewise, under Order 21 Rule 48, attachment of salary of a government servant, railway servant or servant of local authority can be made by the Court whether the judgment debtor or the disbursing officer is or is not within the local limits of the court’s jurisdiction. 24. Section 39 does not authorise the court to execute the decree outside its jurisdiction, WP(C)22637/08 7 but it does not dilute the other provisions giving such power on compliance with the conditions stipulated in those provisions. Thus, the provisions, such as, Order 21 Rule 3 or Order 21 Rule 48 which provide differently, would not be affected by section 39(4) of the Code.” Rule 48 of Order XXI provides the procedure for attachment of salary or allowances of a servant of the Government or railway company or local authority. Under Rule 48 where the property to be attached is the salary or allowances of a servant of the Government or of a servant of the railway company or local authority or of a servant of a corporation engaged in any trade or industry which is established by Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956, whether the judgment debtor or the disbursing officer is or is not within the local limits of Court’s jurisdiction, the executing Court is competent to order attachment of the salary subject to the provisions of section 60. Explanations 1 and 2 enlarges the scope of the Government and the company, provided under sub rule 1 of Rule 48. But even by WP(C)22637/08 8 the wider sweep provided by the explanations, an employee of the Devaswom Board cannot be included within the ambit of Rule 48. Rule 48A deals with the procedure for attachment of the salary of an employee other than an employee to whom Rule 48 applies. Under Rule 48A an order of attachment of salary can be passed only by the Court within the local limits of the jurisdiction where the disbursing officer or the employee judgment debtor is employed. 6. Rule 3 of Order XXI provides 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 the entire estate or tenure. 7. When sub section (4) of section 39 bars the jurisdiction of any other Court, except the Court within whose jurisdiction the property of judgment debtor lies or the judgment debtor voluntarily resides or carries on business or works for gain to execute the decree against his property or person, Rule 3 and Rule 48 of Order XXI provide the only exception thereto. Therefore an order of attachment of salary, by the Court which executes the decree, be it the Court which passed the decree or by the Court to which it was transferred for execution, can be WP(C)22637/08 9 passed only if the disbursing officer or the employee is within the local limits of that Court, if he is an employee as provided under Rule 48 of Order XXI of Code of Civil Procedure. When petitioner third judgment debtor is not employed and is not residing within the jurisdiction of Munsiff Court, Alappuzha and the disbursing officer is also not within the jurisdiction of the said Court, even if it is competent to execute the decree transferred by Munsiff Court, Pathanamthitta, it is not competent to execute the decree by attachment of salary of the petitioner in view of Rule 48A of Order XXI of Code of Civil Procedure. Therefore the order of attachment as such is illegal as it is in violation of Rule 48A of Order XXI of Code of Civil Procedure. 8. Section 39 provides for transfer of the decree. It reads: “(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 WP(C)22637/08 10 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 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, 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 WP(C)22637/08 11 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.” The question is when there are more than one judgment debtor, is it necessary to transfer the entire decree to another Court if one among them not voluntarily resides or works for gain or carries on business or has no property within the local limits of that Court. Is it possible to retain the decree in the Court which passed the decree to be executed as against one or more judgment debtors and transfer the decree as against the other judgment debtors alone. In view of sub section 4 of Section 39 when one or more of the judgment debtors is not residing or is not carrying on business or is not working for gain within the local limits of jurisdiction of the Court which passed the decree, WP(C)22637/08 12 or when their property is outside the local limits of that Court, decree cannot be executed against that person or his property in that Court. If the decree is to be executed against that judgment debtor or his property, necessarily the decree is to be transferred to the Court of competent jurisdiction. In such a case the decree as against other judgment debtors need not be transferred. When even simultaneous execution is possible, the Court which passed the decree is competent to transfer the decree as against one of the judgment debtors whose property is outside the local limits of jurisdiction or who is residing or is employed or carries on business outside the jurisdiction of that Court, so that it could be executed against him by the Court of competent jurisdiction, while retaining the decree to be executed as against the other judgment debtors whose property is situated or are residing or employed or carries on business within the local limits of its jurisdiction. If that be so, it cannot be said that when an application is filed under section 39 of Code of Civil Procedure by the decree holder, to transfer the decree for its execution to another Court of competent jurisdiction as against only one of the judgment debtors, the entire decree against all the judgment debtors is to be WP(C)22637/08 13 transferred. If it is to be held otherwise, decree holder cannot proceed against the property of other judgment debtors or personally against the other judgment debtors. When the decree creates a joint and several liability and the decree is executable against all the judgment debtors the decree can be executed as against one judgment debtor in the Court which passed the decree and as against the other judgment debtor in the transferee Court. It is more so when simultaneous execution is legally permissible. Take an example where there are four judgment debtors out of which only one resides or is having property within the local limits of the Court which passed the decree and the other three judgment debtors are within the jurisdiction of three other Courts. It is definitely possible to transfer the decree as against the other three judgment debtors to the Courts of competent jurisdiction under section 39 of the Code. If so it is also possible to retain the decree as against one judgment debtor for execution in the Court which passed the decree and transfer the decree as against the other judgment debtors to the respective Courts of competent jurisdiction. If so the respective transferee Court can execute the decree only against that judgment debtor and not against the other WP(C)22637/08 14 judgment debtors against whom the decree was not transferred by the Court which passed the decree. The transferee Court can execute the decree only against that judgment debtor. As against the other judgment debtors it is to be executed by the Court which passed the decree or by the transferee Court to which the decree was transferred to execute the decree as against that judgment debtor. This view is supported by the decision of a learned Single Judge of High Court of Rajasthan in Omprakash v. M/s Hargovind Raj Kumar (AIR 1993 Rajasthan 68). 9. If that be the case, Ext.P1 shows that decree holder filed the execution petition (EP 29 of 2005) with the sole prayer of transferring the decree to be executed as against first judgment debtor. After issuing Rule 22 notice to that judgment debtor alone, the decree was transferred to Munsiff Court, Alappuzha for execution of the decree as against first judgment debtor. The decree transferred to Munsiff Court, Alappuzha is not for execution as against the other judgment debtors but only as against the first judgment debtor. True, section 42(1) provides that the Court executing a decree sent to it, shall have the same powers in executing such decree, as if it had been WP(C)22637/08 15 passed by itself. It reads: “The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. An d its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.” But that power is only as against judgment debtor against whom the decree is transferred for execution and not against the other judgment debtors. As far as the transferee Court is concerned, in view of section 42 of the Code the transferee Court is competent to exercise all the powers in executing such decree, as if the transferee Court passed the decree. But that power is limited to the extent of exercising it as against the judgment debtor against whom the decree is transferred for execution to the transferee Court and not against the other judgment WP(C)22637/08 16 debtors. 10. This Court had occasion to consider the powers of the transferee Court in Ramankutty v. Kali Nani (1986 KLT 54). Pareed Pilla, J held: “Merely because a court which passed the decree has sent it for execution before another court, it cannot be said that the transferee court gets full powers with regard to every aspect of the matter in total disregard of the court which passed the decree. It is open to the transferor court to withdraw the execution by calling back the decree to be sent to another court. It may make an order for simultaneous execution by another court. It may make an order of rateable distribution. Even after the decree has been transferred the transferor court can decide an objection as to limitation if referred to it by the transferee court. If the decree is assigned after transfer the assignee has to apply for execution in the WP(C)22637/08 17 original court. Under S.50 of the C.P.C. Where a judgment debtor dies before the decree has been fully satisfied the holder of the decree has to apply to the court which passed it to execute the same against the legal representatives of the deceased. The above instances are sufficient to illustrate that the transferor court retains its powers even though the decree made by it has been transferred to another court. By the transfer what the transferee court gets is only the authority to execute the decree. It cannot alter or vary the decree in any manner. Not it can entertain any challenge against the legality of the decree.” That decision supports the view taken in this case. Even the transferee Court is bound by the bar provided under sub section 4 of section 39, which is only subject to Rule 3 and Rule 48 of Order XXI of the Code. If Munsiff Court, Alappuzha, if it had passed the decree, could not have executed the decree by attachment of the salary of the petitioner in view of section WP(C)22637/08 18 39(4), being a transferee Court it could not exercise a higher power in violation of section 39(4), when Rule 48A of Order XXI alone applies. 11. Ext.P1 establishes that the decree passed by Munsiff Court, Pathanamthitta was transferred to Munsiff Court, Alappuzha for execution as against the first judgment debtor alone, as he is residing within the jurisdiction of Munsiff Court, Alappuzha. Ext.P2 execution petition filed before the transferee Court by the decree holder also establishes that the prayer was to execute the decree as against the property and personally against first judgment debtor. Fact that decree holder sought to issue notice in that execution petition to other judgment debtors will not arm the transferee Court with any additional power, which it inherently lacks. Evidently learned Munsiff did not consider his jurisdiction to execute the decree as against the other judgment debtors while issuing notice to them. Again when the decree holder produced the schedule for attachment, without considering the ambit of Rule 48 of Order XXI of Code of Civil Procedure, and without considering the question whether salary of the petitioner, who is not an employee as provided under Rule 48 of Order XXI, could be attached by the transferee WP(C)22637/08 19 Court executing the decree, when his disbursing officer is not within the local limits of that Court and only Rule 48A of Order XXI could have been applied was not considered and an order of attachment of the salary of third judgment debtor was passed. In such circumstances, it can only be found that Munsiff Court, Alappuzha has jurisdiction only to execute the decree as against first judgment debtor and not against the other judgment debtors. In any case, that Court could not have passed an order of attachment in violation of the provisions of Rule 48A of Order XXI of Code of Civil Procedure. Ext.P3 order is quashed. This writ petition is allowed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-