Mohit Bhargava vs Bharat Bhushan Bhargava & Ors

1. While the judgment debtor challenges the order of the High Court in a petition filed by him under Article 227 of the Constitution of India to the extent it rejects his prayers, the decree holder has also challenged the same order to the extent it upheld an objection of the judgment debtor. The decree holder and the grand father of the judgment debtor among others, were partners in a firm. A notice of dissolution was issued by some of the partners to the grand father of the judgment debtor. Ultimately, the decree holder filed a suit in the District Court of Gwalior for dissolution of the partnership and for rendition of accounts. On 27.4.1981 the court passed a preliminary decree declaring that the partnership firm stood dissolved with effect from 20.6.1978 and directing that accounts be taken to settle mutual rights and liabilities. A receiver who had been appointed pending the suit was directed to continue.

2. The father of the judgment debtor pre-deceased the grand father of the judgment debtor. It is said that on 26.3.1985, the grand father executed a will bequeathing the properties to his grand son, the judgment debtor. At the relevant time, the judgment debtor, the legatee, was a minor. Provisions were made regarding the management of the properties during the minority of the judgment debtor. On 19.11.1985, the grand father of the judgment debtor died. The final decree proceedings continued and the Commissioner submitted his report after scrutinising the accounts on 27.8.2002. On 29.11.2002, the District Court Gwalior, passed a final decree in the suit for dissolution. Under the final decree, the judgment debtor was liable to pay to the plaintiff a sum of Rs.6,66.292.50 and a total sum of Rs.10,83,757/- to other partners and a sum of Rs.5,000/- as his share of fees to the Commissioner. According to the judgment debtor, he has filed an appeal against this final decree, but due to objections raised by the Registry of the High Court regarding the court fee payable, further orders are awaited in the appeal on that question.

3. On 2.1.2003, the decree holder, the plaintiff in the suit, filed an execution petition in the District Court of Gwalior for execution of the decree. In other words, the execution petition was filed in the court which passed the decree. Meanwhile, it is said that the will executed by the grand father designating the judgment debtor as the legatee was probated. On 19.3.2003, the decree holder moved the executing court for an injunction restraining the person holding the building said to have been bequeathed to the judgment debtor by his grand father, from handing over possession of the same to the judgment debtor and from handing over the documents of title to him. He also sought a direction restraining the bank holding an account of the estate from permitting the judgment debtor to operate the accounts. The executing court passed an order on 19.3.2003 directing the occupant of the building as well as the bank not to transfer to the judgment-debtor the properties enumerated in the list submitted by the decree holder. The person holding the building moved the executing court praying that he be relieved from the responsibility of managing the property. He also produced certain documents in the executing court with a prayer that he be relieved of his obligations. On 7.7.2003, the executing court, after taking notice of the documents produced by the occupant of the building concerned, directed that the documents be kept in safe custody of the court. On 26.7.2003, an application was moved by the decree holder submitting that he had received an offer for the purchase of the building in question, which was situate at 14, Bakshi Colony, Indore, and praying that the said property may be sold by way of auction and the amount received be apportioned among the decree holder and other partners. Though the judgment debtor had not then and there challenged the orders dated 19.3.2003 and 7.7.2003, he now raised an objection in the executing court that the executing court lacked territorial jurisdiction to order the sale of the property situate in Indore lying outside its territorial jurisdiction. The application was made under Section 39 read with Order XXI Rule 3 of the Code of Civil Procedure (for short 'the Code'). The judgment debtor also filed an independent objection to the prayer of the decree holder for sale of the property at 14 Bakshi Colony, Indore. On 6.4.2004 the executing court rejected the objections from the judgment debtor. It held that it had territorial jurisdiction to proceed with the execution. It also passed an order directing that the house at No.14, Bakshi Colony, Indore be sold by public auction after due publicity. Feeling aggrieved by the last order and belatedly feeling aggrieved by the earlier orders dated 19.3.2003 and 7.7.2003, the judgment debtor approached the High Court originally by way of a revision under Section 115 of the Code, but on its being held that a revision is not maintainable, later by way of a motion under Article 227 of the Constitution of India challenging all the orders. The High Court held that the executing court, the District Court at Gwalior, lacked territorial jurisdiction to continue the execution especially in respect of properties outside its jurisdiction or to order sale of building No. 14 Bakshi Colony, Indore and consequently set aside the order dated 6.4.2004 and transferred the execution to the concerned court at Indore for proceeding with the execution. But the High Court repelled the challenge to the earlier orders of restraint dated 19.3.2003 and 7.7.2003 passed by the executing court at Gwalior. Feeling aggrieved by the non-interference with the orders dated 19.3.2003 and 7.7.2003, the judgment debtor has approached this Court. Feeling aggrieved by the upholding of the objection of the judgment debtor to jurisdiction, the decree holder has come up to this Court.

8. In the case on hand, the property that is sought to be sold in execution of the decree for dissolution is not a property of the partnership. It is not a partnership asset held by the court Gwalior or within the jurisdiction of the court at Gwalior. Order XXI Rule 50 of the Code is, therefore, not attracted. What is sought to be done by the decree holder is to seek the sale of a property belonging to the judgment debtor so as to realise the fruits of his decree. Since that property lies outside the jurisdiction of the court at Gwalior, the executing court was not correct in over ruling the objection of the judgment debtor regarding the absence of jurisdiction in the Gwarlior court to order sale of the property outside its jurisdiction. The High Court was, therefore, justified in interfering with that order and in transferring the decree to the court having jurisdiction over the property that is sought to be proceeded against by the decree holder. We, therefore, see no infirmity in that part of the order of the High Court sought to be challenged before us by the decree holder.

10. In the result, the challenge by both sides to the order of the High Court is rejected except to the extent of the clarification as above regarding the order dated 17.12.2000.

11. The appeal is, therefore, dismissed subject to the above clarification. However, there will be no order as to costs.