THE law does not prevent simultaneous execution of decree in more courts than one,
Citation
CDJ 1996 DHC 661
Cholamandalam investment and finance company limited vs CEC Ltd
Cases Referred:
Rulia Ram and Anr. V. Diwan Chand and Ors., AIR 1934 Lah 728
Jatendrakumar Das V. Mahendrachandra Banikya, AIR 1933 Cal 906
Jaunendra Nath Ghosh V. Kumar Jogendra NarainSinha, AIR 1923 Pat 384
Prem Lata Agarawal V. Lakshman Prasad Gupta and Ors., AIR 1970 SC 1525
Radheshyam and Ors. V. Devendra, AIR 1952 Pat 213
S. Sundara Rao V. Appiah Naidu and Anr. AIR 1954 Mysore 154
Bhagwandas V. Gomtibai, AIR 1962 All 619
Gyanchand V.Banwarilal, 1964 0 MPLJSN 180
Athivarapu Venkatarami Reddi V. Kotamreddi Rami Reddi, AIR 1950 Mad 582
Saroda Prosaud Mullick V. Luchmeeput Singh
Manganese Ore (India) Ltd. V. M/s. Mangilal Rungta, AIR 1981 Del 114
Comparative Citations:
1996 (2) AD(Del) 517, 1995 (2) DLT 16, 1995 (34) DRJ 379
Rulia Ram and Anr. V. Diwan Chand and Ors., AIR 1934 Lah 728
Jatendrakumar Das V. Mahendrachandra Banikya, AIR 1933 Cal 906
Jaunendra Nath Ghosh V. Kumar Jogendra NarainSinha, AIR 1923 Pat 384
Prem Lata Agarawal V. Lakshman Prasad Gupta and Ors., AIR 1970 SC 1525
Radheshyam and Ors. V. Devendra, AIR 1952 Pat 213
S. Sundara Rao V. Appiah Naidu and Anr. AIR 1954 Mysore 154
Bhagwandas V. Gomtibai, AIR 1962 All 619
Gyanchand V.Banwarilal, 1964 0 MPLJSN 180
Athivarapu Venkatarami Reddi V. Kotamreddi Rami Reddi, AIR 1950 Mad 582
Saroda Prosaud Mullick V. Luchmeeput Singh
Manganese Ore (India) Ltd. V. M/s. Mangilal Rungta, AIR 1981 Del 114
Comparative Citations:
1996 (2) AD(Del) 517, 1995 (2) DLT 16, 1995 (34) DRJ 379
Head Note
R. C. LAHOTI, J.
(1) THIS order disposes of several applications filed by the decree holder and judgment debtors during execution proceedings.
(2) THE High Court of Madras in exercise of its Ordinary Original Civil Jurisdiction passed a money decree dated 28th June, 1991 based on a compromise. The three judgment debtors who are respectively Company, its Managing Director and Director were directed to pay the decretal amount in instalments. The decree having not been honoured, the decree holder took out execution. By transfer certificate dated 24. 2. 92 the decree accompanied by a certificate of non-satisfaction at Madras has been transferred for execution to Delhi High Court (Original Side). Yet again the decree accompanied by transfer certificate and certificate of non-satisfaction at Madras has been transferred to Panjab High Court for execution on its Original Side
(3) EA 282/94 and 283/94 have been filed by the Company (Judgment Debtor No. 1) raising objections to the maintainability of the execution at Delhi. The principal objection raised is that simultaneous execution of decree at Chandigarh and Delhi is an abuse of the process of Court and therefore the execution application at Delhi deserves to be dismissed or adjourned sine die unless and until the decree holder may withdraw the execution pending at Chandigarh. It is also submitted by reference to Section 41 of the Civil Procedure Code that so Iong as a certificate of non-satisfaction has not been issued and sent by one transfaree court to the original executing court, a fresh application for execution seeking its transfer to another court would not lie. Heavy reliance is placed by the learned counsel for the judgment debtor on Rulia Ram and Anr. VS. Diwan Chand and Ors. , AIR 1934 Lahore 728; Jatendrakumar Das VS. Mahendrachandra Banikya, AIR 1933 Calcutta 906 and Jaunendra Nath Ghosh VS. Kumar Jogendra Narain Sinha, AIR 1923 Patna 384.
(4) I see no merit in the objection raised. No provision of Civil Procedure Code has been brought to my notice which may expressly prohibit simultaneous execution of decree before two Courts. Section 38 provides for execution of a decree either by the Court which passed it or by the Court to which it is sent for execution. The provision is permissive in nature. Section 39 of the Civil Procedure Code and Rules 4 to 9 of Order 21 contemplate transfer of a decree for execution to another court and the execution by transferee court.
(5) THE law does not prevent simultaneous execution of decree in more courts than one, although the Court transferring the decree may in its discretion refuse such transfers as would avail the decree holder concurrent executions before more courts than one. The judgment debtor should not be put to hardship nor to opperssion. The fact remains that simultaneous transfer of decree for execution to two courts and simultaneous execution proceedings are neither illegal nor without jurisdiction.
(6) I am fortified in taking the above view by the decision of the Supreme Court in Prem Lata Agarawal VS. Lakshman Prasad Gupta and Ors. , (AIR 1970 SC 1525) :-
"simultaneous execution proceeding in more places than one is possible but the power is used sparingly in exceptional cases by imposing proper terms so that hardship does not occur to judgment-debtors by allowing several attachments to be proceeded with at the same time. "
(7) SIMULTANEOUS execution is permissible, is the view taken by Full Bench of Patna High Court in Radheshyam and Ors. VS. Devendra, AIR 1952 Patna 213, Full Bench of Mysore High Court in S. Sundara Rao VS. Appiah Naidu and Anr. AIR 1954 Mysore 154, Division Bench of Allahabad High Court in Bhagwandas VS. Gomtibai, AIR 1962 All 619 (overruling its earlier view to the Contrary), Madhya Pradesh High Court in Gyanchand VS. Banwarilal (1964 MPLJ SN 180), Madras High Court in Athivarapu Venkatarami Reddi VS. Kotamreddi Rami Reddi (AIR 1950 Mad 582). In the earliest and leading authority of Saroda Prosaud Mullick VS. Luchmeeput Singh (14 MIA 529) it was held that there was no irregularilty in a Zillah Judge transmitting the record to three Zillah Courts at the same time for execution.
(8) ALL the decisions relied on by the learned counsel for the Judgment debtors are under Article 182 (5) of the Limitation Act, 1908 holding in the facts of each case that any application made by the decree holder to the transferring court after the decree has been transferred to another court for execution does not amount to step in aid of execution so as to save limitation. Those cases do not interms apply to the case at hand. In any case, I am bound to follow the law laid down by the Supreme Court. I would also prefer to adopt the view taken by the majority of High Courts referred to in para 7 above.
(9) THE Full Bench of Patna High Court in Radheshyam's case (supra) has clearly held that the Court passing the decree has the jurisdiction to execute the decree in certain circumstances inspite of absence of any certificate under Section 41 from the transferee court. It is clear that merely because the Madras Court had not received certificate under Section 41 Civil Procedure Code from Delhi Court it was not deprived of jurisdiction to entertain a fresh prayer for transfer of decree for execution to another court.
(10) I have asked the learned counsel for the Judgment debtors, if the judgment debtors have paid a single penny in satisfaction of decree ever since 28. 6. 1991, the date of the decree? The answer has been in the negative Nothing has been pleaded much less suggested to hold if at all and how the judgment debtors are suffering hardship or oppotression by such simultaneous execution. The objections preferred by the JDs are wholly devoid of any merit. It is merely an affort at delaying the execution proceedings by unwilling judgment debtors. The objections are rejected, however, with a view to safeguard the interest of the JDs, it is directed that the decree holder shall not secure such attachment the total whereof taken together at Panjab and Delhi may exceed the amount payable under the decree.
(11) EA 199/94 is an application under Order 21 Rule 41 Civil Procedure Code filed by the decree holder seeking examination of the judgment debtor Nos. 2 and 3 as to their properties. The application is opposed by the judgment debtors submitting that this Court cannot direct a roving enquiry to be made unless the decree holder had disclosed facts conferring this Court with jurisdiction to execute the decree. This Court has jurisdiction to execute the decree, the same having been transferred to it and the JDs actually and voluntarily residing or carrying on business or personally working for gain within the jurisdiction of this Court within the meaning of Section 39 (1) (a) of the Civil Procedure Code. This is alleged in the execution application. The company-Judgment debtor No. 1 has its principal office in Delhi is not denied.
(12) MANGANESE Ore (India) Ltd. VS. M/s. Mangilal Rungta, AIR 1981 Delhi 114, relied on by learned counsel for judgment debtor does not help him. This Court has held that jurisdictional facts have to be averred by decree holder and cannot be left to be determined by indulging into a roving enquiry resorting to Order 21 Rule 41 Civil Procedure Code. The object of Order 21 Rule 41 Civil Procedure Code is to obtain discovery for the purpose of execution in cases where there is any difficulty or delay in obtaining particulars of the judgment debtros' property. This is what the decree holder has done in the present case. The jurisdictional facts are all averred in execution application. By application under Order 21 Rule 41 Civil Procedure Code. the decree Holder is seeking ascertainment of judgment debtor's property. The prayer of decree holder cannot be rejected by branding it one seeking a roving enquiry. The application is allowed. The judgment debtors No. 2 and 3 shall be bound to appear before the Court for recording their statements.
(13) THE up short of the above discussion is EA No. 282-283/94 filed by the JDs are rejected. EANo. l99/94 filed by the decree holder is allowed.
(1) THIS order disposes of several applications filed by the decree holder and judgment debtors during execution proceedings.
(2) THE High Court of Madras in exercise of its Ordinary Original Civil Jurisdiction passed a money decree dated 28th June, 1991 based on a compromise. The three judgment debtors who are respectively Company, its Managing Director and Director were directed to pay the decretal amount in instalments. The decree having not been honoured, the decree holder took out execution. By transfer certificate dated 24. 2. 92 the decree accompanied by a certificate of non-satisfaction at Madras has been transferred for execution to Delhi High Court (Original Side). Yet again the decree accompanied by transfer certificate and certificate of non-satisfaction at Madras has been transferred to Panjab High Court for execution on its Original Side
(3) EA 282/94 and 283/94 have been filed by the Company (Judgment Debtor No. 1) raising objections to the maintainability of the execution at Delhi. The principal objection raised is that simultaneous execution of decree at Chandigarh and Delhi is an abuse of the process of Court and therefore the execution application at Delhi deserves to be dismissed or adjourned sine die unless and until the decree holder may withdraw the execution pending at Chandigarh. It is also submitted by reference to Section 41 of the Civil Procedure Code that so Iong as a certificate of non-satisfaction has not been issued and sent by one transfaree court to the original executing court, a fresh application for execution seeking its transfer to another court would not lie. Heavy reliance is placed by the learned counsel for the judgment debtor on Rulia Ram and Anr. VS. Diwan Chand and Ors. , AIR 1934 Lahore 728; Jatendrakumar Das VS. Mahendrachandra Banikya, AIR 1933 Calcutta 906 and Jaunendra Nath Ghosh VS. Kumar Jogendra Narain Sinha, AIR 1923 Patna 384.
(4) I see no merit in the objection raised. No provision of Civil Procedure Code has been brought to my notice which may expressly prohibit simultaneous execution of decree before two Courts. Section 38 provides for execution of a decree either by the Court which passed it or by the Court to which it is sent for execution. The provision is permissive in nature. Section 39 of the Civil Procedure Code and Rules 4 to 9 of Order 21 contemplate transfer of a decree for execution to another court and the execution by transferee court.
(5) THE law does not prevent simultaneous execution of decree in more courts than one, although the Court transferring the decree may in its discretion refuse such transfers as would avail the decree holder concurrent executions before more courts than one. The judgment debtor should not be put to hardship nor to opperssion. The fact remains that simultaneous transfer of decree for execution to two courts and simultaneous execution proceedings are neither illegal nor without jurisdiction.
(6) I am fortified in taking the above view by the decision of the Supreme Court in Prem Lata Agarawal VS. Lakshman Prasad Gupta and Ors. , (AIR 1970 SC 1525) :-
"simultaneous execution proceeding in more places than one is possible but the power is used sparingly in exceptional cases by imposing proper terms so that hardship does not occur to judgment-debtors by allowing several attachments to be proceeded with at the same time. "
(7) SIMULTANEOUS execution is permissible, is the view taken by Full Bench of Patna High Court in Radheshyam and Ors. VS. Devendra, AIR 1952 Patna 213, Full Bench of Mysore High Court in S. Sundara Rao VS. Appiah Naidu and Anr. AIR 1954 Mysore 154, Division Bench of Allahabad High Court in Bhagwandas VS. Gomtibai, AIR 1962 All 619 (overruling its earlier view to the Contrary), Madhya Pradesh High Court in Gyanchand VS. Banwarilal (1964 MPLJ SN 180), Madras High Court in Athivarapu Venkatarami Reddi VS. Kotamreddi Rami Reddi (AIR 1950 Mad 582). In the earliest and leading authority of Saroda Prosaud Mullick VS. Luchmeeput Singh (14 MIA 529) it was held that there was no irregularilty in a Zillah Judge transmitting the record to three Zillah Courts at the same time for execution.
(8) ALL the decisions relied on by the learned counsel for the Judgment debtors are under Article 182 (5) of the Limitation Act, 1908 holding in the facts of each case that any application made by the decree holder to the transferring court after the decree has been transferred to another court for execution does not amount to step in aid of execution so as to save limitation. Those cases do not interms apply to the case at hand. In any case, I am bound to follow the law laid down by the Supreme Court. I would also prefer to adopt the view taken by the majority of High Courts referred to in para 7 above.
(9) THE Full Bench of Patna High Court in Radheshyam's case (supra) has clearly held that the Court passing the decree has the jurisdiction to execute the decree in certain circumstances inspite of absence of any certificate under Section 41 from the transferee court. It is clear that merely because the Madras Court had not received certificate under Section 41 Civil Procedure Code from Delhi Court it was not deprived of jurisdiction to entertain a fresh prayer for transfer of decree for execution to another court.
(10) I have asked the learned counsel for the Judgment debtors, if the judgment debtors have paid a single penny in satisfaction of decree ever since 28. 6. 1991, the date of the decree? The answer has been in the negative Nothing has been pleaded much less suggested to hold if at all and how the judgment debtors are suffering hardship or oppotression by such simultaneous execution. The objections preferred by the JDs are wholly devoid of any merit. It is merely an affort at delaying the execution proceedings by unwilling judgment debtors. The objections are rejected, however, with a view to safeguard the interest of the JDs, it is directed that the decree holder shall not secure such attachment the total whereof taken together at Panjab and Delhi may exceed the amount payable under the decree.
(11) EA 199/94 is an application under Order 21 Rule 41 Civil Procedure Code filed by the decree holder seeking examination of the judgment debtor Nos. 2 and 3 as to their properties. The application is opposed by the judgment debtors submitting that this Court cannot direct a roving enquiry to be made unless the decree holder had disclosed facts conferring this Court with jurisdiction to execute the decree. This Court has jurisdiction to execute the decree, the same having been transferred to it and the JDs actually and voluntarily residing or carrying on business or personally working for gain within the jurisdiction of this Court within the meaning of Section 39 (1) (a) of the Civil Procedure Code. This is alleged in the execution application. The company-Judgment debtor No. 1 has its principal office in Delhi is not denied.
(12) MANGANESE Ore (India) Ltd. VS. M/s. Mangilal Rungta, AIR 1981 Delhi 114, relied on by learned counsel for judgment debtor does not help him. This Court has held that jurisdictional facts have to be averred by decree holder and cannot be left to be determined by indulging into a roving enquiry resorting to Order 21 Rule 41 Civil Procedure Code. The object of Order 21 Rule 41 Civil Procedure Code is to obtain discovery for the purpose of execution in cases where there is any difficulty or delay in obtaining particulars of the judgment debtros' property. This is what the decree holder has done in the present case. The jurisdictional facts are all averred in execution application. By application under Order 21 Rule 41 Civil Procedure Code. the decree Holder is seeking ascertainment of judgment debtor's property. The prayer of decree holder cannot be rejected by branding it one seeking a roving enquiry. The application is allowed. The judgment debtors No. 2 and 3 shall be bound to appear before the Court for recording their statements.
(13) THE up short of the above discussion is EA No. 282-283/94 filed by the JDs are rejected. EANo. l99/94 filed by the decree holder is allowed.
Comments
Post a Comment