IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.1040 of 2008 and M.P.No.1 of 2008 M/s.Itel Industries Pvt. Ltd., No.90, Wellington Plaza, 3rd Floor, Anna Salai, Chennai 600 002. ... Petitioner Vs. M/s.Ind. Solders and Alloys Pvt. Ltd., rep. By its Managing Director, T.R.Viswanathan No.45, South Usman Road, T.Nagar, Chennai - 600 017. ... Respondent Prayer: Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 20.12.2007 made in E.P.No.3350 of 2007 in O.S.No.1310 of 2003 on the file of X Asst. City Civil Court, Chennai. For Petitioner : Mr.V.Bhiman for Mr.Sampathkumar Associates For Respondent : Mr.C.N.Gopinath ORDER
The civil revision petitioner/Judgment Debtor/defendant has filed this civil revision petition as against the order dated 20.12.2007 in E.P.No.3350 of 2007 in O.S.No.1310 of 2003 passed by the X Assistant Judge, City Civil Court, Chennai in ordering the issue of precept by 19.02.2008.
2.The learned counsel for the revision petitioner/ Judgment Debtor/defendant urges before this Court that the order of the trial Court in issuing precept by 19.02.2008 is not correct in the eye of law inasmuch as the executing Court has no power to issue precept for attachment of movables situated within the jurisdiction of City Civil Court, Mumbai and further that the trial Court has exceeded its authority in issuing precept for attaching the movable property shown to be kept at City Civil Court, Mumbai and that the Executing Court viz., City Civil Court, Chennai has got the right only to transmit the decree to City Civil Court, Mumbai and execution can only be done there and that the trial Court has failed to appreciate the principles laid down in the decision in Mohit Bhargava V. Bharat Bhushan Bhargava and others 2007 AIR SCW 2707 in proper perspective and therefore, prays for allowing the civil revision petition in the interest of justice.
3. Per contra, the learned counsel for the respondent/ plaintiff/decree holder submits that the respondent/ plaintiff in E.P.No.3350 of 2007 before the Executing Court has only prayed for an issuance of precept under Section 46 of Civil Procedure Code to the City Civil Court at Mumbai for attachment of movables of Judgment Debtor lying in Itel Industries Private Limited Registered Office: Bombay House, Home Mody Street, Fort, Mumbai – 400 001 and that the trial Court has passed a well considered order in ordering precept by 19.02.2008 and the same need not be interfered by this Court sitting in revision.
4.The learned counsel for the revision petitioner relies on the decision in Mohit Bhargava V. Bharat Bhushan Bhargava and others 2007 AIR SCW 2707 wherein the Hon’ble Supreme Court has inter alia observed that in respect of decree for sale of property situated outside jurisdiction of Court, the decree has to be transferred to Court having jurisdiction over the property and no option left with execution Court after 2002 amendment.
5.The gist of the argument of the learned counsel for the revision petitioner/Judgment Debtor is that the the Executing Court viz., X Assistant Judge, City Civil Court, Chennai has no power to issue precept for attachment of movables has prayed for in E.P.No.3350 of 2007 by the respondent/plaintiff.
6.It cannot be gainsaid that as a general rule the territorial jurisdiction is a pre-requisite factor to a Court of law executing a decree and neither the Court which passes a decree, nor the Court to which it is sent for execution can execute it in respect of property lying outside its territorial jurisdiction, in the considered opinion of this Court.
7.The main object of Section 46 of Civil Procedure Code viz., Precept is to enable the attachment of the property of Judgment Debtor situated within the jurisdiction of another Court, in order to defer the defendant/Judgment Debtor from alienating or otherwise dealing with the property, to the detriment of the Judgment Debtor till proper and appreciate proceedings are initiated. As a matter of fact, the Court to which a precept is issued gets its authority from the precept and the Court has no power to do anything not authorised thereby, but it ought to be presumed to have inherent powers to deal with all matters which may incidentally arise in connection with the proceedings for attachment.
8.To put it succinctly an order of precept is not an order transferring a decree for execution to the Court to which it is issued. Really speaking, this Court points out that Section 46 of Civil Procedure Code concerns with execution of decrees and does not affect the Jurisdiction of a Court of law under Order 38 Rule 5 of Civil Procedure Code to attach before Judgment, properties lying outside the jurisdiction of the Court as per decision in Chiman Das V. Mahadevappa AIR 1961 A.P. 417. Viewed in this perspective, after going through the order passed by the trial Court in regard to the issuance of precept by 19.02.2008, this Court is of the considered view that the order of the trial Court in regard to the issuance of precept is perfectly a valid one in the eye of law and resultantly, the civil revision petition fails and the same is hereby dismissed.
In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs.
sgl
To
The X Assistant City Civil Court,
Chennai