Posted On by &filed under High Court, Orissa High Court.


Orissa High Court
Raghunath Ray And Another vs Madhabananda Mallik on 29 August, 2000
Author: L Mohapatra
Bench: L Mohapatra


JUDGMENT

L. Mohapatra, J.

1. This revision has been filed against the order dated 9-3-98 passed by the Civil judge (Senior Division), Bhadrak, rejecting the application filed by the petitioners under section 47 read with section 151 of the Code of Civil Procedure.

2. The case of the petitioners is that a decree was passed against them by the Calcutta High Court in Suit No. 105 of 1983 and the said decree was transmitted to the court of the learned Civil Judge (Senior Division), Bhadrak for execution. It was contended on behalf of the petitioners that the decree was passed in the suit on 5-3-1984 and the decree having been sent for execution by the Calcutta High Court on 2-8-1996, the same is clearly barred by limitation and it cannot be executed. It was also contended that the decree is not executable against the petitioners in their individual capacity as the same has been passed against M/s. R. B. Trading Company.

3. An objection was filed on behalf of the opposite party stating that the suit had been filed in the Calcutta High Court under its Original Civil Jurisdiction praying for a decree of Rs. 1,39,473.63 p. against the petitioners and the suit having been decreed, petitioners are liable to pay the same with interest. Since in spite of the decree the judgment-debtors, that is, the petitioners, did not take any step for payment of the decretal dues, the opposite party had no other option excepting approaching the court for execution of the decree and therefore, this Execution Case was filed before Hon’ble Calcutta High Court on 16-5-1984 praying for realisation of Rs. 2,59,378.43 p. as well as Rs. 5,000/- towards cost of the suit and the Hon’ble Calcutta High Court transferred the Execution Case to the Civil Court, Bhadrak, on 12-8-1996, Therefore, the Execution Case was well within time.

4 The learned Civil Judge (Senior Division), Bhadrak, rejected the application on the ground that in the year 1984 the order was passed by the Calcutta High Court to transmit the decree to the court of the District Judge, Bhadrak, for execution and therefore, the execution proceeding was not barred by limitation. Other objections raised by the petitioners were also turned down.

5. Learned counsel Shri P. Kar, appearing for petitioners, has raised two points; namely.

(a) Decree having been passed against the company and its Managing Director, making them jointly and severally liable, the executing court cannot proceed against the personal property or the Managing Director and he relies on a decision reported in A.I.R. 1987 Orissa 79 : Hrushikesh Panda v. Indramani Swain and another

(b) The decree is not executable being barred by limitation; &

(c) The decree having been sent to the court of the Civil Judge (Senior Division), Bhadrak, directly, the same cannot be entertained as under the provisions of law the decree has to be sent to the District Court and not to the Civil Judge (Senior Division), Bhadrak. On this point the learned counsel has relied upon a decision of this Court reported in 30(1964) C. L T. 9 : Ghanasyamdas Kejriwal alias Agarwal v. Srimati Durga Devi and others.

6. Coming to the second question as to whether the Execution Case-is barred by limitation or not, it is necessary to find out the date on which the decree was passed and the date on which it was sought for being executed. There is no dispute about the fact that the decree was passed by Calcutta High Court on 1-2-1984. From paragraph 9 of the impugned judgment it appears that on 14-9-94 the Calcutta High Court had passed an order to the following effect :

“Certified copy of the decree dated 1-2-84 together with the certificate of non-satisfaction be transmitted to the District Court, Bhadrak, Orissa”.

It is, therefore, clear from the aforesaid order that steps had been taken by the opposite party to get the decree executed at least in the year 1994, that is within twelve years from the date of passing of the decree. From Annexure-1 to the revision petition it appears that the decree was sent to Bhadrak Court for execution on 9-8-96. If there was delay by the court in sending the decree to Bhadrak for execution no fault can be found with the plaintiff – opposite party who had taken steps within the prescribed period of limitation for getting the decree executed. I, therefore, do not find any illegality in the finding of the trial court that the Execution Case has been levied within the period of limitation.

7. Coming to the third question as to whether an illegality has been committed by the Calcutta High Court in sending the decree to the court of the Civil Judge (Senior Division), Bhadrak, direptly for execution, or not, it is necessary to refer to Order 21, Rule 5 of the Code of Civil Procedure. Order 21, Rule 5 prescribes that where a decree is to be sent for execution to another court, the court which passed such decree shall send the decree directly to such other court whether or not such court is situated in the same State, but the court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the court having such jurisdiction. Shri Kar submits that Order 21, Rule 8 prescribes that where such copies are so filed the decree or order may, if the court to which it is sent is the District Court, be executed by such court or be transferred for execution to any subordinate court of competent jurisdiction. He relied upon the decision reported in 30(1964) C. L. T. 9 (supra). Shri B. H. Mohanty, learned counsel appearing for opposite party, submits that the decision referred to by Shri Kar is under the provisions of the old Code and after amendment of the Code in 1976 as per the new provision it is not necessary to send the decree to the District Court for execution. From the decision relied upon by Shri Kar it appers that the case was decided under the old Code. Under the old Code where a decree is sent for execution in another State, the court which passed the decree was required to send it to, the District Court of the district in which the decree is to be executed and the District Court is itself to execute it or send it to any other subordinate, court of competent jurisdiction. So far as the present case is concerned, it is governed under the amended Act of 1976 and under Order 21, Rule 5 the court which passed such decree can send the decree directly to such other court whether or not such other court is situated in the same State for execution. Only when such decree is sent to the District Court for execution under Order 21, Rule 8, C. P. C., it may be executed by the District Court or be transferred to any other subordinate court of competent jurisdiction. But it appears that there is no bar for the court passing the decree to send it directly to such other court in another State for its execution.

8. So far as the first point is concerned, learned counsel for petitioners has not been able to assail the finding of the trial court. I, therefore, do not find any reason to interfere with the impugned order and the Revision dismissed,

9. Revision dismissed.


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