{"id":157859,"date":"2004-03-01T00:00:00","date_gmt":"2004-02-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-narayan-bhattad-vs-tmt-krishna-bai-jhaver-on-1-march-2004"},"modified":"2014-06-26T07:28:13","modified_gmt":"2014-06-26T01:58:13","slug":"ram-narayan-bhattad-vs-tmt-krishna-bai-jhaver-on-1-march-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-narayan-bhattad-vs-tmt-krishna-bai-jhaver-on-1-march-2004","title":{"rendered":"Ram Narayan Bhattad vs Tmt.Krishna Bai Jhaver on 1 March, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Ram Narayan Bhattad vs Tmt.Krishna Bai Jhaver on 1 March, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 01\/03\/2004\n\nCoram\n\nThe Hon'ble Mr.JUSTICE K.GOVINDARAJAN\nand\nThe Hon'ble Mr.JUSTICE N.KANNADASAN\n\nO.S.A.No.46 of 1991\nand O.S.A. Nos. 47 to 56 and 66 to 69 of 1991\n\nO.S.A.No.46\/1991\n\nRam Narayan Bhattad                    .. Appellant\n\n-vs-\n\n1.Tmt.Krishna Bai Jhaver\n2.Harikrishna Jhaver\n3.D.K.Jhaver\n4.J.K.Jhaver\n5.V.K.Jhaver\n6.Vimala Jhaver\n7.Pushpa Mundra                                 .. Respondents\n\n\nCounsel for Appellants     : Mr.V.Lakshminarayanan\n\nCounsel for Respondents:  Mr.R.Krishnamurthy,\n                      Senior Counsel, forward\n                     Mr.V.Nataraj, for R6 & R7,\n                     in O.S.A.No.46 to 50, 54 to 56, 68 & 69                   and for R1 & R5,\n                     in O.S.A.51 to 53, 66 & 67\/91\n\n                     Mr.A.L.Somayaji,\n                     Senior counsel, for\n                     Mrs.K.Bhanumathi, for\n                     R1 toR5 in O.S.A.46 to 50, 54 to 56, 68&\n                    69 & for\n                    R2 to R4 in O.S.A.51 to53\/91,66 & 67\/91.\n\n:COMMON JUDGMENT\n\nK.GOVINDARAJAN,J.\n<\/pre>\n
        The above Appeals are filed  by  the  assignee-decree  holder  of  the
\ndecree  granted in C.S.No.28\/1975 having aggrieved by the orders passed by the
\nlearned single Judge in various Applications.  Since the issue raised in these
\nAppeals are very narrorw one, namely, whether the Execution Petitions filed in
\nE.P.Nos.58, 69, 70 and 71 of 1986 by  the  appellant  in  this  Court  without
\nobtaining  permission  to  have  simultaneous  execution  of  the  decree  are
\nmaintainable, we are not proposed to elaborate the facts as they are not to be
\ndecided except a few facts which are necessary to decide the issue.\n<\/p>\n
        2.  The plaintiff\/Andhra Bank Ltd., filed a suit in C.S.No.28\/1975 for
\nrecovery of a sum of Rs.15,58,214.79 from the defendants,  after  obtaining  a
\ndecree on 25.4.1979, directing defendants 3 and 4 and defendants 5 to 11, from
\nout of  the  assets, if any, of the deceased R.S.  Jhaver, who is the original
\ndefendant, in the hands of defendants 5 to 11.  The appellant  got  assignment
\nof the  said  decree  from  General  Electric  Co.    of  India, as there is a
\nprovision in the decree that defendants 2 and 3 and defendants 5 to  11  shall
\npay  to  the  4th  defendant,  the decree amount and that the 4th defendant be
\nentitled to execute the decree on payment of 50% of the Court Fee  payable  at
\n75% of  Rs.17,50,000\/-.    The  assignee-decree  holder  filed E.P.No.121\/1985
\nbefore this Court and the same was transferred to Sub-Court,  Poonamallee  and
\nrenumbered as E.P.No.80\/1985.    Thereafter, the appellant filed E.P.  Nos.57,
\n58, 69,  70and  71  of  1986.    The  learned  Master  while  considering  the
\npreliminary  objection  raised  on behalf of the respondents that simultaneous
\nexecution of the decree without obtaining permission of the Court and  without
\nnotice  to  the  judgment-debtor  is  not  maintainable,  held  that  the said
\nobjection raised cannot be sustained at all and the said objection  cannot  be
\nraised at  this  stage.   So, the respondents preferred Appeals in Application
\nNos.4701, 4715, 4705, 4710, 4717 , 4028, 4027, 4026, 4711, 4713,  4706,  4029,
\n4030, 4704  and 4719 of 1 990.  The learned Judge in the common order impugned
\nin the above Appeals held that the Execution  Petitions  pending  before  this
\nCourt  are  not  maintainable  as  no permission was obtained for simultaneous
\nexecution of the decree in this Court as well in the  Sub-Court,  Poonamallee.
\nAggrieved  against the said common order, the assignee-decree holder filed the
\nabove Appeals.\n<\/p>\n
        3.  Learned counsel for the appellants submitted  that  neither  under
\nthe  Code of Civil Procedure nor under the Original Side Rules, the compelling
\ndecree holder has to file an Application to execute the decree obtained in the
\nHigh Court.\n<\/p>\n
        4.  Moreover, the appellant filed Execution Petitions only in the High
\nCourt and not in any other Court by seeking transfer of the decree.  He refers
\nto various provisions both in the Code of Civil Procedure and in the  Original
\nSide Rules of this Court in support of his submission.\n<\/p>\n
        5.   Mr.R.Krishnamurthy,  learned  Senior  Counsel  appearing  for the
\nrespondents submitted that since notice is not served on the  respondents,  in
\nview of the order dated 18.7.2000, the Appeal has to be dismissed.  On merits,
\nlearned  Senior  Counsel,  referring to various provisions of the Code and the
\nOriginal Side Rules of this Court, submitted that such permission is necessary
\nto maintain simultaneous execution of the decree.  Hence the learned Judge  is
\ncorrect in rejecting the Execution Petitions.\n<\/p>\n
        6.   Mr.Somayaji,  learned Senior Counsel appearing for the respective
\nrespondents reiterated the arguments  advanced  by  Mr.Krishnamurthy,  learned
\nSenior  Counsel  and  he also referred to the Ground No.4 in the Memorandum of
\nGrounds to submit that the appellant has come forward with the false  case  as
\nif  he  sought  permission  of  this  Court  for simultaneous execution of the
\ndecree.\n<\/p>\n
        7.  The points for consideration in the above Appeals are:-
\n        (1) Whether the simultaneous Execution Petitions are  sustainable,  to
\nexecute  the  decree  obtained  in  C.S.No.28\/1975  on the file of this Court,
\nwithout obtaining permission of this Court?\n<\/p>\n
        (2) Whether the appeals are liable to be  dismissed  in  view  of  the
\norder dated 18.7.2000 in the Appeals?\n<\/p>\n
        8.  First  we  are inclined to deal with the point No.2, first.  Since
\nthe appellant has not taken steps to serve the notice on certain  respondents,
\nthe  appeals  were  posted  in the list and in the order dated 1 8.7.2000, the
\nDivision Bench passed the following order:-\n<\/p>\n
“As a last chance, the appellant is granted time till 24.7.2000 ( inclusive of
\n24.7.2000).  Failing to comply  with  the  required  formalities  by  them,the
\nappeal will stand dismissed automatically without any further orders from this
\nCourt”.\n<\/p>\n
In  spite  of  the  said order, the appellant has not taken steps to serve the
\nnotice on the respondents 1 and 5 in O.S.A.Nos.51 to 53 of 1991 ,  respondents
\n6  and 7 in O.S.A.54 to 56 of 1991 and respondents 6 and 7 in O.S.A.Nos.68 and
\n69 of 1991.  We have come to the said  conclusion  only  because  the  learned
\ncounsel  for  the appellant is not in a position to point out from the records
\nthat they have complied with the direction to serve the notice  on  the  above
\nsaid respondents.   So the appeals have to be dismissed insofar as respondents
\n1 and 5 in O.S.A.51 to 53 of 1991, respondents 6 and 7 in O.S .A.54 to  56  of
\n1991 and respondents 6 and 7 in O.S.A.68 and 69 of 1991.\n<\/p>\n
        9.   Learned  counsel  for the appellants, relying on the order of the
\nLearned Master, submitted that with respect  to  the  maintainability  of  the
\nexecution  petition on the basis that no prior permission was obtained was not
\nraised earlier even before the learned Judge, who remanded the matter  to  the
\nMaster  again,  and  for  the  first  time the same has been raised and so the
\nlearned Judge is not correct in deciding the maintainability of the  execution
\npetition on  the  above  said  basis.    We  are  not  able to accept the said
\nsubmission.  The said issue is raised on the basis of the facts available  and
\nalso  it goes to the root of the matter with respect to the maintainability of
\nthe execution petition itself.  Even the said objection  is  not  raised,  the
\nlearned Master should have considered the same if it is brought to his notice.
\nHence we reject the submission of the learned counsel in this regard.\n<\/p>\n
        10.   Admittedly,  no  Application is filed seeking permission to file
\nsimultaneous  Execution  Petition  to   execute   the   decree   obtained   in
\nC.S.No.28\/1975.   The  Execution Petition filed originally in E.P.No.121\/19 85
\nwas sought to be transferred and as per the order of this Court, the same  was
\ntransferred  to  sub-Court,  Poonamallee  and  renumbered  as  E.P.No.80\/1985.
\nThereafter, the appellant filed E.P.No.57, 58, 69, 7  0  and  71  of  1986  to
\nexecute  the  decree  by attaching the immovable properties and the shares and
\nalso to prohibit the  transfer  of  shares.    The  Execution  Petitions  were
\ndismissed  at  the  instance  of  the  respondents on the ground that no prior
\nApplications were filed seeking permission for simultaneous execution  of  the
\ndecree.\n<\/p>\n
        11 The procedure with respect to execution is dealt with in part II of
\nthe Code of Civil Procedure.  By virtue of Sec.38 of the Code, a decree may be
\nexecuted  either  by  the court which passed it or by the Court to which it is
\nsent for execution.  Sec.39 of the Code gives right to  the  decree-holder  to
\nget  the  decree  transferred for the purpose of execution of another Court of
\ncompetent jurisdiction.  The court which passes the decree may  also,  on  its
\nown motion send the decree for execution to any subordinate Court of competent
\njurisdiction.    If   such  a  decree  is  transferred  to  another  Court  as
\ncontemplated under Sec.42 of the code,  the  Court  executing  such  a  decree
\ntransferred  to it, shall have the same power in executing such a decree as if
\nit had been passed by itself.\n<\/p>\n
        12.  Order 21 of the Code deals  with  execution  of  the  decree  and
\norders.   Order 21, Rule 5 of the Code deals with mode of transfer of a decree
\nfor execution.  Order 21, Rule 10 of  the  Code  deals  with  Application  for
\nexecution  according to which the decree-holder shall apply to the Court which
\npasses the  decree  or  to  the  transferee  Court  if  the  decree  has  been
\ntransferred for the purpose of execution.\n<\/p>\n
        13.   Order 21, Rule 21 of the Code deals with simultaneous execution,
\nwhich reads as follows:-\n<\/p>\n
“21.  Simultaneous execution:-  The  Court  may,  in  its  discretion,  refuse
\nexecution   at   the  same  time  against  the  person  and  property  of  the
\njudgment-debtor.”\n<\/p>\n
The above said provision is not applicable to the facts of the present case as
\nthe said provision only deals with simultaneous  execution  both  against  the
\nperson and  the  property.  It does not deal with the execution of a decree at
\nthe same time in different courts and by filing different execution  petitions
\nin the  same Court.  We are now concerned with reference to the execution of a
\ndecree in different courts by filing many execution petitions more than one to
\nexecute the same decree simultaneously.\n<\/p>\n
        14.  Since the matter arises out of the order passed  by  the  learned
\nJudge of this Court in exercise of the Original Civil Jurisdiction, we have to
\ndeal  with the relevant provisions in the Rules of the Original Side framed by
\nthe High Court of Judicature at Madras.\n<\/p>\n
        15.  The applicability  of  the  Code  of  Civil  Procedure  has  been
\nrestricted  under  Order  I,  Rule 3 of the Original Side Rules of this Court,
\nwhich is as follows:-\n<\/p>\n
“3.  Except to the extent  specifically  provided  for  by  these  rules,  the
\nprovisions of  the  Code  shall apply to all proceedings.  The rules and forms
\nmentioned in Appendix III hereto and all previous rules  and  forms,  and  the
\nprovisions  of the Code, so far as such provisions are inconsistent with these
\nrules and forms, are hereby repealed and superseded and the  following  rules,
\norders and forms shall stand in lieu thereof.”\n<\/p>\n
        16.   The “Execution Application” has been defined under Order I, Rule
\n4(4) of the Original Side Rules of this Court as it means  an  application  to
\nthe Court  for  the  execution of a decree or order.  Order 39 of the Original
\nSide Rules of this Court deals with the procedure for execution of decrees and
\norders on the Original Side where an application for execution of decrees  and
\norders on  the  file  of the Original Side were made.  Order 39, Rule 2 of the
\nOriginal Side Rules deals with the transfer of a decree on  the  file  of  the
\nOriginal Side  of this court to another Court for execution.  Order 39, Rule 5
\nof the Original Side Rues indicates the power of the  Courts  other  than  the
\nCourts  to  which  a  decree was transmitted for execution to proceed with the
\nexecution, unless the Court passes the decree otherwise  orders.    Order  39,
\nRule  6  of  the Original Side Rules gives a right to execute a decree in more
\nthan one Courts, other than High Court, contemporaneously.   So  it  is  clear
\nthat  under  Order 39 of the Original Side Rules, no provision is contemplated
\nor no prohibition is made to execute a decree simultaneously in the High Court
\nand also in the mofussil Courts.\n<\/p>\n
        17.  The above said issue as to whether a Court  which  has  passed  a
\ndecree  can,  despite its having transferred it for execution to another Court
\nand not having received it back with a non-satisfaction certificate, entertain
\nan Application for simultaneous execution, has been dealt with by the Division
\nBench of this court in Pedda Subba Rao v.  Ankamma<\/a>  1932  (63)  M.L.J.    788,
\nMahadum Beg Sahib vs.   Md.  Meera Sahib, AIR<\/a> 1928 Mad.  493 and in Rama Reddi
\nv.  Motilal Daga, ILR<\/a> (1938) Mad.  326.\n<\/p>\n
        18.  In view of the settled position, though  the  other  Courts  have
\ntaken  contra view, now we have to proceed on the basis that the decree passed
\non the file of the Original Side of this Court can be executed in  this  Court
\nsimultaneously,  though  the  copy  of  the decree has been transferred to the
\nother Court for  execution.    So,  the  remaining  question  is  whether  the
\ndecree-holder  has  to obtain permission from the Court that passed the decree
\nto sustain such simultaneous execution petition.\n<\/p>\n
        19.  Section 39  of  the  Code  of  Civil  Procedure  deals  with  the
\nconditions  under  which  a  decree  passed  may  be sent to another Court for
\nexecution.  It may be  sent  for  execution  to  another  Court  if  immovable
\nproperty to be sold or delivered situates outside the limit of jurisdiction of
\nthe  Court  which  passes  the  decree  and  presumably  within  the limits of
\njurisdiction of the court to which it is sent for execution.  It may  also  be
\nsent  to  another  Court  if  the  judgment-debtor resides there or carries on
\nbusiness or works for gain within the  limits  of  the  jurisdiction  of  that
\nCourt.   If the judgment-debtor has no property within the jurisdiction of the
\ncourt which passes the decree, sufficient  to  satisfy  the  decree,  and  has
\nproperty  within the limits of the jurisdiction of the Court under which it is
\nsent, the decree may be sent to that Court for execution.  If the Court  which
\npasses  the  decree  considers  for reasons which shall be recorded in writing
\nthat the decree should be executed by another Court, then also, the decree may
\nbe sent to another Court for execution.  But, there is no specific prohibition
\nunder Sec.39 to the Court which  passed  the  decree  to  carry  on  execution
\nproceedings  simultaneously,  after the decree has been transferred to another
\nCourt for execution.\n<\/p>\n
        20.  As contemplated under Sec.39 of the Code, if there is  sufficient
\nproperty  by  a  sale  of which the debt may be realised, ordinarily, no Court
\nwould be justified in sending the decree to another Court for execution.    If
\nfor instance, the property within the jurisdiction of the court which passes a
\ndecree  is  comparatively  not  of  much  value  and  the  property within the
\njurisdiction of the Court to  which  a  decree  is  transferred  is  also  not
\ncomparatively  for  such  value,  then  there  can  be  no  injustice  to  the
\njudgment-debtor carrying an execution proceedings in both the Courts.  But, if
\nthe decree is sent for execution to two or more Courts to be executed  at  the
\nsame  time  and  the amounts realised in the aggregate may be much higher than
\nthe judgment debt, it would manifestly bear injustice to  the  judgment-debtor
\nto allow  the  execution  proceedings  to go at the same time.  In the present
\ncase, in view of the order passed transferring the  decree  for  execution  to
\nother  Court  at  the  instance of the appellant, it has to be taken that this
\nCourt on the Original Side satisfied while ordering transfer of a  decree  for
\nexecution  to  other court that the property of the judgment-debtor within the
\njurisdiction of the High Court ( Original Side) is comparatively not  of  much
\nvalue, to  satisfy  the  decree.   If it is so, if the appellant wants to file
\nexecution petitions simultaneously  in  the  High  Court  (Original  Side)  to
\nexecute  the  same  decree,  before entertaining such execution petitions, the
\nappellant has to satisfy the court two facts.  One is that the property within
\nthe jurisdiction of the Court to which the decree is  sent  for  execution  is
\nalso  not comparatively of much value and the second is that the earlier order
\nof transfer was passed not on valid reasons,  though  the  judgment-debtor  is
\nhaving  sufficient  property  of  much  value to satisfy the decree within the
\njurisdiction of the High Court (Original Side).  The said satisfaction can  be
\narrived  at  only  if the appellant files an application seeking permission to
\nfile execution petition  before  the  Original  Side  of  this  court.    Such
\napplication  is  necessary  because  if  the decree is executed in two or more
\ncourts at the same time, there is a possibility of realising more amounts from
\nthe judgmentdebtor, then it is against the interest  of  the  judgment-debtor.
\nMoreover,  if the full amount of decree is realised by two or three courts, it
\nis difficult to see how matters can be worked out, which of the sale has to be
\nheld valid and on what ground and what  interest  would  be  acquired  by  the
\npurchaser on those sales.\n<\/p>\n
        21.  The above view is supported by the decision of the Division Bench
\nof this  Court in the decision in Maharaja of Bobbili v.  Sree Raja Narasaraju
\nPeda Baliar Simhulu Bahadur,<\/a> (1914) ILR 37 Mad 231, in which it is  held  that
\nwhen  concurrent execution is necessary, the court which passed the decree may
\norder it, as such court retains control over the execution proceedings.    But
\ntill  such  order  is  passed  and permission is given to the decree-holder to
\nexecute the decree simultaneously in more than one court, he  is  entitled  to
\ncarry on  execution proceedings at the same time.  The said Division Bench has
\nalso relied on the decision of the Privy Council reported  in  Saroda  Prosaud
\nMullick v.    Luchmeeput  Sing  Doogur, (1872) 14 MIA 529 which dealt with the
\nscope of Code of Civil Procedure of 1859.\n<\/p>\n
        22.  The learned Judge of this Court in the  decision  in  Venkatarami
\nReddi v.    Rami  Reddi,<\/a>  1950(1)  MLJ  787,  found  that  an  application for
\nsimultaneous execution has to be filed only in  the  court  which  passed  the
\ndecree for the purpose of proceeding simultaneous execution.\n<\/p>\n
        23.   The Learned Judge also relied on the decision reported in AIR 19
\n70 SC 1525 (Prem Lata v.  Lakshman Prasad)<\/a> in which it is held as follows:-\n<\/p>\n
“Simultaneous execution proceeding in more places than one  is  possible,  but
\nthe  power  is used sparingly in exceptional cases by imposing proper terms so
\nthat  hardship  does  not  occur  to  judgment-debtors  by  allowing   several
\nattachments to be proceeded with at the same time.”\n<\/p>\n
        24.   The judgments cited by the Learned Counsel for the appellant are
\nnot helpful to decide the  issue  regarding  the  necessity  to  obtain  prior
\npermission.   Moreover  with  respect  to the the said judgments of other High
\nCourts, we need not rely on the same as the judgment of the Division bench  of
\nthis Court cited above is available on the point.\n<\/p>\n
        25.   From  the  above,  it  is  clear  that  decrees  may be executed
\nsimultaneously in more than one court but there should be an order  permitting
\nsuch  execution,  considering  the  necessity  for  permission  for concurrent
\nexecution, before such execution proceedings can be carried out.\n<\/p>\n
        26.  In view of the above reasonings, we are of  the  considered  view
\nthat  the  common  order  dated 3.12.1990 of the learned single Judge does not
\nrequire any interference and so the above Appeals are dismissed.    No  costs.
\nConnected pending Civil Miscellaneous Petitions are also dismissed.\n<\/p>\n
Index:yes
\nInternet:yes<\/p>\n
sks<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ram Narayan Bhattad vs Tmt.Krishna Bai Jhaver on 1 March, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01\/03\/2004 Coram The Hon’ble Mr.JUSTICE K.GOVINDARAJAN and The Hon’ble Mr.JUSTICE N.KANNADASAN O.S.A.No.46 of 1991 and O.S.A. Nos. 47 to 56 and 66 to 69 of 1991 O.S.A.No.46\/1991 Ram Narayan Bhattad .. Appellant […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-157859","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nRam Narayan Bhattad vs Tmt.Krishna Bai Jhaver on 1 March, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-narayan-bhattad-vs-tmt-krishna-bai-jhaver-on-1-march-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Narayan Bhattad vs Tmt.Krishna Bai Jhaver on 1 March, 2004 - 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