JUDGMENT
Jayanta Kumar Biswas, J.
1. This application (G.A. No. 4063 of 2003) has been taken out by the judgment-debtors in the execution application (G.A. No. 1254 of 2001); they were the defendants in Civil Suit No. 614 of 1999 filed in this Court by the decree-holder as plaintiff. In the Master’s summons dated November 29th, 2003 connected with this application, the judgment-debtors have made the following prayers:–
“(a) Application being G.A. No. 1254 of 2001 in C.S. No. 614 of 1999 (Auto Trade & Finance Corporation v. Raj Kishore Sanganaria and Anr.) be dismissed.
(b) Orders dated April 10, 2001 passed in G.A. No. 1254 of 2001, order dated July 24, 2003 and November 14, 2003 be recalled and the Receiver appointed over two flats being Flat D and Flat F situate in Block-B-2 at second floor Premises No. 106, Kiran Chandra Singha Road, Howrah-711 102, be forthwith discharged.
(c) Stay of all proceedings in G.A. No. 1254 of 2001 and applications connected therewith in C.S. No. 614 of 1999 (Auto Trade & Finance Corporation v. Raj Kishore Sanganaria and Anr.).
(d) An order directing the Receiver appointed by this Hon’ble Court in G.A. No. 1254 of 2001 and applications connected therewith in C.S. No. 614 of 1999 to forthwith handover possession of the two flats being flat No. D and flat No. F situate in Block-B-2, at second floor Premises No. 106, Kiran Chandra Singha Road, Shibpur, Howrah to defendants/judgment debtors.
(e) Injunction restraining the plaintiff/decree holder and the Receiver appointed in G.A. No. 1254 of 2001 (Auto Trade & Finance Corporation v. Raj Kishore Sanganaria and Anr.) and each of them whether by themselves or their servants, agents and/or assigns or howsoever from giving any effect or further effect to and/or acting in terms of or pursuant to any of the orders dated April 10, 2001 or July 24, 2003, and November 14, 2003 by this Hon’ble Court in G.A. No. 1254 of 2001.
(f) Injunction restraining the plaintiff/decree holder and the Receiver appointed in G.A. No. 1254 of 2001 (Auto Trade & Finance Corporation v. Raj Kishore Sanganaria and Anr.) and each of them whether by themselves or their servants, agents and/or assigns or howsoever from giving any effect or further effect to and/or acting in terms of or pursuant to the advertisement of sale of the two flats being Flat D and Flat F in Block-B-2, at second floor Premises No. 106, Kiran Chandra Singha Road, Shibpur, Howrah, published by the learned Receiver being annexure ‘E’ to the affidavit.
(g) Ad-interim orders in terms of prayers above.
(h) Cost of this application be borne by the plaintiff/decree holder.
(i) Such other order or orders as this Hon’ble Court may deem fit and proper.”
2. Briefly stated, the facts leading to the filing of the present application by the judgment-debtors are these. On November 19th, 1999 the decree-holder, a sole proprietorship firm of Arjun Das Goyal & Sons, a Hindu-undivided family, filed Civil Suit No. 614 of 1999 in this Court against the judgment-debtors. It was filed for the following reliefs:-
“(a) A decree for Rs. 14,28,000/- (Rupees Fourteen lakhs twenty eight thousand) only from the defendants jointly and severally;
(b) Interim interest and interest on judgment at the rate of 24% till the realisation of dues;
(c) Declaration that the property mentioned in annexure “B” herein to remain as security for repayment of the claim of the plaintiff;
(d) A decree for sale of the property mentioned in the schedule being annexure “B” to the plaint with direction or (sic) appropriation of the net proceeds thereof in protento satisfaction of the plaintiff’s claim and dues in the suit;
(e) An injunction be granted restraining the defendants their servants, agents and men from selling, disposing of or transferring or encumbering the said property;
(f) Attachment;
(g) Receiver;
(h) Costs;
(i) Such further and/or other relief or reliefs which the plaintiff is otherwise entitled both under the law and in equality.”
3. On December 10th, 1999 the judgment-debtors received a copy of the plaint together with a copy of an interlocutory application and its connected notice of motion. On August 31st, 2000 the suit was decreed ex parte for Rs. 14.28.000/- with interests at the rate of 6% per annum from the date of the decree until realisation. The judgment-debtors did not pay the money in terms of the decree. On March 26th, 2001 the decree-holder filed the execution application in this Court under Rule 10 of Chapter XVII of the Original Side Rules of this Court. The prayers made in it were as follows:
“(a) A Receiver be appointed in respect of the Flat D & F situated the second floor Block-B-2 of the Premises No. 106, Kiran Chandra Singha Road, P.S. Shibpur, Howrah-711102.
(b) That the Receiver be directed to sell the Flat D & F type situated in the second floor Block-B-2 of the Premises No. 106, Kiran Chandra Singha Road, P.S. Shibpur, Howrah-711102, and the Receiver be directed to pay the claim of the plaintiff/decree holder along with the interest accrued thereon out of the sole (sic) proceeds in protanto satisfaction of the decree;
(c) The Officer-in-Charge of the concern (sic) Police Station be directed to render all assistance to the Receiver, if necessary.
(d) Such further order or orders and/or direction or directions be given as this Hon’ble Court may deem fit and proper.”
4. On April 10th, 2001 an order was passed in the execution application to appoint a receiver-in-execution for taking symbolic possession of the immovable properties mentioned in its prayer (a). The judgment-debtors took out an application (G.A. No. 2288 of 2001) for setting aside the ex parte decree; by order dated September 24th, 2002 such application was allowed subject to depositing, Rs. 2,00,000/- by the judgment-debtors within one month after the ‘puja’ vacation of the year 2002. The judgment-debtors did not make the payment, and instead filed an application (G.A. No. 169 of 2003) for reducing the amount by modifying the order dated September 24th, 2002. Such application was dismissed by an order dated March 13th, 2003.
5. In the circumstances stated above an order dated July 24th, 2003 was passed in the execution application to direct the receiver-in-execution to sell the property in terms of prayer (b) of the execution application. Consequently, a sale notice was published by the receiver in newspaper notifying that on November 4th, 2003 the auction would take place. On November 7th, 2003 the judgment-debtors filed another application (G.A. No. 3808 of 2003) for permitting them to pay the decreed amount by instalments. On such application an order dated November 14th, 2003 was passed; by this order the judgment-debtors were given an opportunity to pay Rs. 8,00,000/- by two instalments in the first instance. They, however, did not pay any amount. Such application is pending decision. At such stage of the execution proceeding the present application dated November 28th, 2003 has been taken out by the judgment-debtors praying for dismissal of the execution application and other reliefs as noted before.
6. The case made out in this application for dismissal of the execution application is this. The decree-holder has filed the execution application for attachment and sale of immovable properties belonging to the judgment-debtors, admittedly, outside the local limits of ordinary original civil jurisdiction of this Court. Since the decree directs sale of immovable properties situate outside the local limits of ordinary original civil jurisdiction of this Court, it has no jurisdiction to entertain the execution application, and appoint the receiver-in-execution with direction to sell the properties; and hence the execution application filed in this Court is liable to be dismissed.
7. The learned counsel for the judgment-debtors has contended that in view of provisions contained in Section 39 of the Code of Civil Procedure, 1908, and particularly in Sub-section 4 thereof, this Court has no jurisdiction to proceed with the execution application for directing sale of the judgment-debtors’ immovable properties, admittedly, situate outside the local limits of Ordinary Original Civil Jurisdiction of this Court. In support of his contentions he has relied on the decisions in the cases of:
1. Begg, Dunlop & Co. v. Jagannath Marwari, (1912) ILR 39 Cal 104 (DB)
2. Hart Das Basu v. National Insurance Co. Ltd. ;
3. Smt. Uma Kanoria v. Pradip Kumar Dago, .
8. The decree-holder has chosen not to file any opposition to this application. Its learned counsel has, however, submitted that the judgment-debtors having submitted to the jurisdiction of this Court are estopped not from raising the question of jurisdiction of this Court to proceed with the execution application. His contention is that Sub-section 4 of Section 39 of the Code of Civil Procedure, 1908 has come into force only with effect from July 1st, 2002; and hence it has no application to the execution application filed before July 1st, 2002. He has relied on Section 21 of the Code, and has contended that in view of provisions in Sub-section 3 thereof the judgment-debtors, if at all, could have raised the objection regarding jurisdiction of this Court at the earliest available opportunity, and having not raised such objection, they are estopped now from raising it. In support of his contentions he has relied on the decisions in the cases of : (1) Merla Ramanna v. Nallaparaju and Ors., ; (2) Arati Rani Paul v. Balai Chandra Paul and Ors. AIR 1982 NOC 42 (Cal).
9. In reply the learned counsel of the judgment-debtors has contended that as held in (1) Jnan Chand Chugh v. Jugal Kishore Agarwal and Ors.; ; (2) Devidatt Ramniranjandas v. Shriram Narayandas AIR 1932 Bom 291 (DB), Section 21 of the Code of Civil Procedure, 1908 has no manner of application to this case, because it does not apply to a Chartered High Court.
10. In the case of Begg, Dunlop a Division Bench of this Court held that provisions of Section 38 of the Code of Civil Procedure, 1908, read along with those of Section 39, plainly indicate the acceptance by the Legislature of the general principle that no Court can execute a decree in which the subject-matter of the suit or of the application for execution is property situated entirely outside the local limits of its jurisdiction.
11. In Hart Das Basu’s case again a Division Bench of this Court held as follows:
“The executing Court, like the Court entertaining a suit (except in case of breach of contract), must have territorial jurisdiction over the subject-matter against which execution is sought. Where it has no such jurisdiction the provisions of Section 39, Code of Civil Procedure, must apply, that is to say, the executing Court should send the application for execution to any other Court which has such territorial jurisdiction. The word ‘may’ used in Section 39 does not mean that it is in the discretion of the Court which passed the decree either to execute the decree itself or to send the application for execution to another Court where the property against which execution is sought is situated outside the jurisdiction of the Court which passed the decree. The discretion given there indicates that the Court should send the application for execution to another Court where it thinks that the decree is executable in the way prayed for.”
12. In the single Bench decision in Uma Kanoria’s case it has been held that Sub-section 4 of Section 39 of the Code removes now all doubts about the lack of power of a Court passing a decree to execute it against any person or property outside the local limits of its jurisdiction.
13. In Merla Ramanna’s case the question was whether on transfer of the subject-matter to another Court subsequent to the decree, the Court passing the decree lost the jurisdiction to execute it; and in this context it was held that such Court would not loose its jurisdiction. The decision does not apply to this case in any manner.
14. As noted in Jnan Chand’s case Section 21 of the Code does not apply to this Court in the exercise of its ordinary original civil jurisdiction. Similar was the view taken in Devidatt’s case where the Bombay High Court held that Section 21 of the Code would not apply to the High Court in its ordinary original civil jurisdiction. Besides, the prohibition put by Sub-section (3) of Section 21 applies only to an objection if taken in appellate or revisional Court, and not in the executing Court. Here the objection regarding competence of this Court to execute the decree against properties situate outside the local limits of its jurisdiction has been raised by the judgment-debtors in the execution proceeding, though not at the earliest possible opportunity. Hence, in my view, provisions in Section 21 do not help the decree-holder in this case in any manner.
15. In Arati Rani Paul’s case a learned single Judge of this Court held that the word “may” in Section 39 of the Code is permissive and not mandatory, and in support of such view reliance was placed on the Division Bench decision of this Court in the case of Sakti Nath Ray Choudhury v. Jessore United Bank Ltd. . The learned Judge, it appears, also distinguished the previous Division Bench decisions of this Court in the cases of Begg, Dunlop and Hari Das Basu. It is to be noted that the full text of this single Bench decision has not been placed before me. It is therefore not possible to ascertain the reasoning of the learned Judge for holding that the word “may” in Section 39 is permissive and not mandatory.
16. With great respect I am unable to agree with the view taken by the learned single Judge in Arati Rani Paul’s case that the word “may” in Section 39 is permissive and not mandatory. The view was taken by the learned Judge relying on the Division Bench decision in the case of Sakti Nath Ray Choudhury. But I find that this Division Bench decision nowhere held that the word “may” in Section 39 of the Code of Civil Procedure, 1908 is permissive, and not mandatory. In my view, while it has been used in a permissive sense in Sub-section (2) of Section 39, it has been used in Sub-section (1) in the sense of permissible, that is to say, to signify the existence of the power to transfer the decree.
17. Section 38 of the Code of Civil Procedure, 1908 simply specifies the Courts which are empowered to execute a decree. Execution of a decree begins only with the taking of a positive step for the same by the decree-holder in terms of Rule 10 of Order XXI of the Code, and not by any other mode or means. For execution of a decree passed by this Court in exercise of ordinary original civil jurisdiction, the decree-holder is required to make the application in terms of Rule 10 of Chapter XVII of the Original Side Rules of this Court. Section 39(1) of the Code (for a matter on the Original Side of this Court to be read with Rule 1 of Chapter XVII of the Original Side Rules) mentions the cases where a decree-holder, intending to execute the decree, should approach the Court which passed the decree for its transfer to another Court of competent jurisdiction. The object of conferment of such power to transfer the decree has been given to ensure that the execution proceeding initiated in the Court which passed the decree does not end in part relief to the decree-holder, or does not end in futility, or does not turn dicrectionless at any stage subsequent to its initiation. For getting the decree executed by the Court of competent jurisdiction, if required, the decree-holder has to make an application to the Court passing it for its transfer. Such step is required to be taken independently, and before applying for execution in terms Rule 10 of Order XXI of the Code (and Rule 10 of Chapter XVII of the Original Side Rules of the Court for a matter on the Original Side). At Section 39 stage the Court passing the decree does not consider an application for its execution; it only considers the prayer for transfer. Hence there is no scope for the Court passing the decree to exercise the discretion in favour of proceeding with the execution application at Section 39 stage. It either allows the prayer for transfer of the decree or rejects such prayer. The whole of Section 39 deals with power of the Court passing a decree to transfer it for execution to another Court of competent jurisdiction.
18. I find nothing in Section 39 of the Code of Civil Procedure, 1908 to hold that it conferred any discretion on the Court passing the decree either to execute the decree itself or to transfer it to another Court where the property against which execution is sought is situated outside the local limits of its jurisdiction. In my view Section 39 never curved out an exception to the universal principle (a principle of “International Jurisprudence”, as called by Atkinson, J. in Bank of Bengal v. Sarat Kumar Mitra, 48 IC 943) that a Court cannot ordinarily issue its processes beyond its territorial limits. This section only empowered the Court passing a decree to transfer it for execution to another Court. Even before insertion of Sub-section (4) with effect from July 1st, 2002 it did not empower the Court passing a decree to execute it against any person or property outside the local limits of its jurisdiction. The word “may” in Section 39 of the Code of Civil Procedure, 1908, in my opinion, does not signify anything more than saying that the Court passing the decree is empowered to transfer it for execution to another Court of competent jurisdiction.
19. It is, however, entirely for the decree-holder to decide what he will do with the decree. If he, instead of applying for transfer of a decree to another Court of competent jurisdiction, applies for its execution to the Court passing it with the prayer for issuing its processes beyond its territorial limits, he approaches the wrong forum at his own peril; and such application has to be rejected by the Court passing the decree, once the factual position comes to its notice from the records, or is brought to its notice by the judgment-debtor. The instant case is exactly one of such cases; hence the execution application it liable to be dismissed.
20. For the foregoing reasons I allow this application (G.A. No. 4063 of 2003) filed by the judgment-debtors. The execution application (G.A. No. 1254 of 2001) is hereby dismissed; the receiver-in-execution is discharged with the direction to give back possession of the properties to the judgment-debtors at once. Needless to mention that the pending application (G.A. No. 3808 of 2003) stands, of course, dismissed as infructuous. Considering the conduct of the judgment-debtors, I am not inclined to make any order for costs in their favour.
Urgent xerox certified copy of this judgment and order may be supplied to the parties, if applied for.