Mere production of a certified copy of the order is sufficient without getting the order transferred by the court which is required to enforce the order
JUDGMENT Kedambadi Jagannatha Shetty, J.
1. This revision petition is directed against the order of the lower court dated April 18, 1988, made in an unnumbered execution case on the file of the Munsiff, Kunigal. At the time of admission, notice has been ordered; the respondent has failed to appear in spite of the service of notice and he has been treated as ex parte. The facts in this case are that the petitioner-decree-holder, through the official liquidator, has filed the order dated November 24, 1982, passed by this court (company court) directing judgment-debtors Nos. 1 and 2 to pay the decree-holder a sum of Rs. 553.40 together with interest. The office raised an objection stating that the decree is not transferred to this court as required under section 38 of the Civil Procedure Code and as such the execution is not maintainable.
2. The learned A. G. P. appearing for the official liquidator has submitted that the order passed by the company court under section 446 of the Companies Act can be executed by this court even though there is no order of transfer as required under section 38 of the Civil Procedure Code. The lower court has held that the order now sought to be executed cannot be cancelled by this court in view of section 38 of the Civil Procedure Code, which 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" and further held that the language of section 38 is very clear and unless the order is transferred to this court for execution, this court has no jurisdiction to execute the same. Accordingly, the lower court has held that this execution petition is not maintainable.
3. Hence this revision petition.
4. Learned counsel appearing for the petitioner has submitted that the munsiff has committed the jurisdictional error in dismissing the execution on the ground that the decree for execution is not transferred under the provision of section 38 of the Act. He further argued that the provisions of sections 634 and 635 of the Companies Act provide for enforcement of the order made by the company court in the same manner as a decree made by the court in a suit pending therein which has not been noticed by the lower court.
5. Learned counsel has pointed out that it is an undisputed fact that the company court has passed the order under section 440 of the Companies Act and a copy of that order produced before the court for execution. But the learned munsiff has said that unless there is a transfer as contemplated under section 38 of the Civil Procedure Code, the court has no jurisdiction to execute the decree.
6. The provision of section 635 makes it clear that it is sufficient to produce to the court, which is required to execute its order, a certified copy of the order sought to be executed. The procedure to be followed in the matter of execution of the order made by the company court is different from that laid down in the Code of Civil Procedure. The orders of the company court are not decrees in the strict sense of the word. But it may be enforced in the same manner as a decree. It means, that though an order passed by the company court does not amount to a decree for the purpose of execution, it will be treated as though it is a decree and all the provisions of the Code of Civil Procedure relating to the execution of the decree would then apply. Since the procedure to be followed in the matter of execution of the order of the company court is different from that laid down in the Civil Procedure Code, it is not necessary to comply with the procedure laid down in section 39 of the Civil Procedure Code, and Order 21, miles 4 and 5 of the Civil Procedure Code and get the order first transferred by the court which made it to the court which is to enforce it and then make an application to execute it. Where the order made by the company court is required to be enforced by another court, a mere production of a certified copy of the order is sufficient without getting the order transferred by the court which is required to enforce the order by taking necessary steps in the same manner as if it has been made by itself.
7. The lower court has committed a jurisdictional error in dismissing the execution petition. For the foregoing reason, I am of the view that the impugned order of the lower court is liable to be set aside.
8. The revision petition is allowed, the order of the lower court is set aside and the lower court is directed to take the execution petition on file and take further steps to enforce the order in accordance with law.
9. No costs.
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