IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 2116 of 2003()
1. DR. ASHOK MADHAVAN NAIR, SON OF
... Petitioner
Vs
1. PANDAN KRISHNAN (DIED)
... Respondent
2. PANDAN AJITH KUMAR S/O. MALINI,
3. PANDAN JYOTHISH KUMAR, DO. DO.
4. PANDAN SREEJESH KUMAR, DO. DO.
For Petitioner :SRI.V.RAJAGOPAL
For Respondent :SRI.K.V.SOHAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :29/03/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.Nos.2116 & 2117 of 2003
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Dated this the 29th day of March, 2010
O R D E R
These two revisions arise from two separate
orders passed by the transferee execution court, Sub
Court, Thalassery holding that the decrees transferred to
that court for execution are inexecutable. The decree
holders, who have moved for execution of the decree
and, later, got it transferred to the above court since the
judgment debtors are stated to be having properties
within the jurisdiction of that court, aggrieved by the
orders passed by the Sub Court, Thalassery, as indicated
above, have filed these revisions.
2. Though the decree holders are different,
since common questions of law and facts are involved
and as the judgment debtors in both the proceedings are
common, these revisions are disposed of under this
common order.
C.R.P.No.2116 & 2117 of 2003
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3. I heard the counsel on both sides.
4. From the submissions made and also
perusing the impugned orders passed by the learned Sub
Judge, Thalassery, it is seen that the decrees had been
passed against one Pandan Krishnan, who is no more.
The decrees are now being sought to be executed
against his legal representatives, his wife and children.
5. The learned counsel for respondents, the
legal representatives of the above said Pandan Krishnan
contend that the decrees had been passed not against
Pandan Krishnan in his individual capacity, but as the
Managing Director of a company. So much so,
execution against the judgment debtors and their
properties was objected to before the transferee court,
and on the materials placed and construing the decree
that had been passed, the objection was upheld by the
learned Sub Judge, according to the learned counsel. No
C.R.P.No.2116 & 2117 of 2003
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interference with the orders so passed by the transferee
court to which the decree had been transferred, in the
given facts of the case, is called for, is the submission of
the learned counsel for the respondents.
6. To what extent the transferee court can go
into the objections canvassed against the executability of
the decree raised by the judgment debtors is the
question that emerge for consideration in the present
case. This Court in Ramankutty v. Kali Nani {1986 KLT
54} analysing Sections 42 and 39 of the Code of Civil
Procedure, which are applicable for resolving the
question has held thus:
“The transferee court is not vested with any
jurisdiction under S.42 C.P.C. to review the order of
the transferor court or reconsider it on any grounds.
If the judgment debtor wants to review it he should
approach the court which passed the decree. S.42 of
the CPC itself makes it clear that the transferee court
C.R.P.No.2116 & 2117 of 2003
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is empowered to execute the decree sent to it by the
transferor court and as Order 21 Rule 26 gives
power to the transferee court to stay the execution
of such decree for a reasonable time to enable the
judgment debtor to apply to the court which passed
the decree for an order of stay the position admits of
no doubt that the transferee court is not vested with
full powers as if the transferor court has lost its
seisin over the matter.”
7. Perusing the impugned orders, it is seen
that the transferred court in the present case on the
basis of the promissory note and also such other
materials which gave rise to the decree sent over for
execution had formed some conclusions with respect to
the executability of the decree which in fact was outside
its domain. In fact if the legal representatives of the
judgment debtor have any tenable objection to the
executability of the decree against them, whether it be
passed against Pandan Krishnan in his personal capacity
C.R.P.No.2116 & 2117 of 2003
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or in his capacity as the Managing Director of the
Company, such objections could be canvassed against
the executability of the decree only before the transferor
court. It is open to the legal representatives to seek for
stay of the proceedings by the transferee court for a
reasonable period as provided under Rule 26 of Order 21
of the Code of Civil Procedure to raise their objections
whatever that be, against the executability before the
transferor court which transferred the decrees. The
orders impugned in these revisions passed by the
transferee court are set aside and the transferee court is
directed to dispose of the matter in accordance with law,
subject to providing reasonable opportunity to the
judgment debtors, if any application is moved under
Order 21 Rule 26 Code of Civil Procedure for stay of the
proceedings, to raise their objections before the
transferee court, as provided by law.
C.R.P.No.2116 & 2117 of 2003
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Civil Revision Petitions are disposed of as
above.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
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