Kotak Mahindra Bank Limited v. Ram Sharan Gurjar & Another

Mahesh Bhagwati, J.

1. Challenge in this writ petition is to the order dated 29th August, 2011, whereby the learned District Judge, Jaipur, District Jaipur, returned the Execution Application to the petitioner-decree holder directing him to file the same before the court, which passed the decree.

2. Heard the learned counsel for the petitioner and carefully perused the relevant material on record.

3. Learned counsel for the petitioner canvassed that the property of the judgment-debtor was situated within the jurisdiction of District Judge, Jaipur District and the award in the instant case was passed by the Sole Arbitrator, Chennai (Tamil Nadu) on 3rd November, 2010. Learned counsel contended that it was not essential to obtain the transfer certificate from that executing court, which passed the decree in a particular suit. The Execution Application can be filed straight way in that court also, in whose jurisdiction, the property of the judgment-debtor is situated. He has placed reliance on the judgment rendered by Delhi High Court in the case of Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (E.A. No. 105/2009 in Ex.No. 242/2008). Thus, the impugned order passed by the learned District Judge is perverse and contrary to the provisions of law, which deserves to be set aside.

4. Having considered the submissions made by the learned counsel for the petitioner and carefully perused the afore-stated judgment rendered by the Delhi High Court, it is noticed that the Delhi High Court in Para 25 of the judgment observed as under:-

In this regard the addition of sub-section (4) to Section 39 vide Civil Procedure Code Amendment Act, 2002 is relevant. It provides that 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. The legislative intent appears to be that the decree should be executed by the court within whose territorial jurisdiction the person or the property of the judgment debtor is situated. That is logical also. The purpose of execution is realization of money from the property or the property of the judgment debtor. Thus while territorial jurisdiction for suits is determined by place of occurrence of cause of action, residence of defendants, locus of property etc, the territorial jurisdiction for execution is determined only by locus of judgment debtor or the property. The agreement between the parties restricting jurisdiction of one, amongst many courts also does not extend to execution and is applicable to the court which will adjudicate the lis.

In the same para, Delhi High Court held thus:-

I do not see any reason, why where an award has been made executable as a decree, the execution cannot lie at a place where the property against which the decree is sought to be enforced is situated. That court in my view would have inherent jurisdiction to execute the decree and in the absence of applicability of mandate of Section 38 of Civil Procedure Code, pendantic insistence on first applying for execution to one court, merely to obtain transfer would be also contrary to intent to expendition in the 1996 Act.

5. Learned counsel for the petitioner also canvassed that in similar cases, objection was raised by the Registry relating to furnishing of certificate under Order 21, Rule 6(b) of the Code of Civil Procedure, 1908. The certificate is required to set forth that the satisfaction of the decree had not been obtained by execution within the jurisdiction of the Court by which it was passed. Bombay High Court also placing reliance on the judgment of Delhi High Court, observed that transfer certificate, from the court which passed the decree, was not required for execution of an award (Decree) under the Arbitration Act and thus, the objection raised by the Registry was dispensed with. I concur with the said view.

6. Adverting to the facts of the instant case, it is found that the facts of the instant case are also akin to that of the facts narrated in the afore-stated cases, wherein the judgment was delivered by the Delhi High Court. In view of the dictum of Delhi High Court, the impugned order is found to be perverse and contrary to the provisions of law, which deserves to be set aside.

7. For the reasons afore-stated, the writ petition succeeds and the impugned order dated 29th August, 2011, passed by the learned District Judge, Jaipur District, Jaipur, stands set aside. Learned District Judge is directed to hear again and pass an order afresh, after affording an opportunity of being heard to the learned counsel for the petitioner-decree holder.

Writ Petition allowed.