Jurisdiction of Executing Court ( Notes)

JURISDICTION OF EXECUTING COURT

Written and post by

Vinod Kumar Goyal, Advocate

Supreme Court of India

1. What is ‘JURISDICTION’?

The expression ‘jurisdiction’ does not mean the power to do or order the act impugned, but generally it would import the authority of the judicial officer to act in the matter.² The Court shall be competent to entertain the proceeding. The competency is legally termed as ‘jurisdiction’. The jurisdiction is of three kinds, namely statutory, pecuniary, and territorial. Every suit shall be instituted in the Court of the lowest grade competent to try it, is the decisive rule. (See section 15 CPC)

The jurisdiction of a court implies its competence to entertain the dispute and adjudicate upon the same according to law governing the subject matter of the dispute. In other words, it can also be said that the right of action available to a party shall be decided by a court of competent jurisdiction. For this purpose there shall be two conditions to be satisfied by the party, namely, that the claim made by him is within the territorial and pecuniary limits of the court; and secondly, that his claim is of civil nature and is not barred expressly or impliedly by any law.

2. Kinds of jurisdiction

(i) Territorial

(ii) Inherent

(iii) Jurisdiction in terms of competence – powers of the court

3. Executing Court: ‘Court which passed the decree’ – analysis

The relevant provisions of the CPC are given below for ready reference:

Section 37 - Definition of Court which passed a decree: The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,--

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

1[Explanation.--The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.]

Section 38 - Court by which decree may be executed:

A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

A comprehensive analysis of the various provisions of the Code of Civil Procedure would show that every decree of a civil Court is liable to be executed primarily by the Court which passed the decree. Therefore, an application for execution is expected to be filed in the first instance, only in the court which passed the decree. It is only in cases where the Court which passed the decree is unable to execute it, that the provisions for the transfer or transmission of such decree and the procedure prescribed therefor, come into play.

Section 37 of the Code states that the expression “Court which passed the decree” shall in relation to the execution of decrees, unless there is anything repugnant in the subject or context and deemed to include- (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

The expression 'court of first instance' has not been defined in the Code. The term means the parent Court in which the suit was instituted and includes any other Court to which it is transferred for trial and by which it is finally disposed of.³ Suppose the Decree was passed in the year 1993 by Additional District Judge of erstwhile State of Ajmer – Merwara, then the District Judge Ajmer is competent to execute the decree himself or he may assign same to any Additional DJ in his jurisdiction at Ajmer.⁴A ‘camp court’ cannot be said to be a different court for this purpose. Its main seat is the jurisdictional court always High Court can withdraw execution petition and entertain the enquiry by itself.⁶ However, the execution petition even if withdrawn to this Court can proceed only subject to the constraints of Sections 38 and39(4) of the CPC. In other words the execution of the decree cannot pervade beyond the local limits of the jurisdiction of the District Court taking note of the Court which passed the original decree. This is the purport and intent of Section 39(4) of the CPC as reiterated in Salem Advocates Bar Association v. Union of India,⁷

Prior to the introduction of explanation to section 37 of the Code of Civil Procedure, there was a conflict of opinion whether a decree can be executed by a Transferee Court in the absence of any transmission made by the court which passed the decree. There was also a doubt whether the court which passed the decree loses its jurisdiction to execute it by reason of certain matters being transferred to any other court. This doubt was clarified by the introduction of explanation to section 37 and in the amendment Act 104 of 1976.

According to the explanation, the Court of first instance does not cease to have jurisdiction to execute the decree merely on the ground that after the institution of the suit, wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court also shall have jurisdiction to execute the decree, provided at the time making the application for execution of the decree it would have jurisdiction to try the said suit. The explanation to Section 37 thus takes care of a situation where the Courts are reorganized and the territorial jurisdiction is changed on account of such reorganization. Reference also may be had from the following decisions to support this view.⁸

Further, section 38 of the Code provides, inter alia, that the Court which passed the decree or the Court where it is sent for execution, may execute the decree and Sec. 37 of the Code provides, inter alia, that the expression "Court which passed a decree" shall mean, in relation to the execution of decrees, the Court of first instance where the decree to be executed is passed in exercise of appellate jurisdiction whereas in the cases where the Court of first instance has ceased to exist, then the said expression would mean and include the Court which would have jurisdiction to try the suit, if the suit in which the decree is passed was instituted at the time when the execution petition is filed.

The explanation to Sec. 37 provides for succession of the jurisdiction by a newly constituted Court, in relation to matter which was dealt with by its predecessor Court. The explanation does not deal with the cases of transfer under Section 39 CPC. For example, the village Gannavaram was within the territorial jurisdiction of the Court of Senior Civil Judge, Ongole, when the suit was instituted or when the preliminary decree was passed and later on the village came to be brought within the territorial limits of one Court or the other. That village was never within the territorial jurisdiction of Ongole and it was the Court of Senior Civil Judge at Chirala that held the territorial jurisdiction over it, when the suit was filed and when the preliminary decree was passed. It is a fact that the Court of Junior Civil Judge, Addanki was constituted by carving out some areas from the territorial jurisdiction of the Courts of JCJ, Ongole and Chirala. However, the village Gannavaram was transferred to its jurisdiction for the Court of JCJ, Chirala, and not that of Ongole. Same is the case, with the Court of SCJ, Parchur. Once it has emerged that petition schedule property was never within the territorial jurisdiction of the Court of JCJ at Ongole, transfer of some other areas of it, to a newly constituted Court at Addanki or Parchur, cannot confer the territorial jurisdiction upon them to entertain the execution proceedings, in relation to the decree in question. Therefore, when the E.P was presented to a Court, who did not have the territorial jurisdiction and the objection rose in terms of sub-section (3) of Section 21, deserved to be sustained.⁹

There is a classic precedent from AP High Court. A suit is filed for specific performance in the Court of Subordinate Judge, Eluru by which time the town Tadepalligudem was within the jurisdiction of Sub-court, Eluru at the time suit was instituted. Later, suit was transferred on administrative grounds to Sub-Court, Kovvur where the decree of specific performance was granted. In the meanwhile, a Sub-Court was constituted at Tadepalligudem Town also. In pursuance of decree granted by Sub-court, Kovvur, the Execution petition filed at Kovvur was returned by that Court and it is presented at Sub-Court at T.P. Gudem which has territorial jurisdiction over subject matter of suit. Sub-Judge held that the EP is not maintainable, ignoring the import of Section 37 but having only considered the scope of Sections 38 and 39 which was held by the High Court as not relevant for the purpose of deciding the issue. It is held that the Sub-Court, Tadepalligudem has jurisdiction to entertain EP.¹⁰

In Akola Janata Commercial Co-Op. Bank Ltd. case,¹¹ the Division Bench of Bombay High Court considered the definition of a Court under Section 2(1) (e) of the Act and the definition of an ‘executing court’ and the ‘Court to which the decree is transferred’ under Sections 37, 38 and 39 of the CPC’. Under section 36 of the Arbitration & Conciliation Act the award can be enforced under the CPC in the same manner as if it were a decree. This would be by the ‘Court’ defined under Section 2 (1) (e) as the Court having jurisdiction to decide questions forming the subject matter of the arbitration. Thus where the award has been passed in Mumbai the Bombay High Court would be the Court which must be taken to be the “the Court which passed the decree” under Section 37 of the CPC. Consequently under Section 38 of the CPC the decree would be executed by Bombay High Court which passed it or the Court to which it sent for execution. Under Section 39 the Court would send the decree for execution to another court where it would have to be executed upon the application of the decree holder. It is held in that judgment that the award must be treated as the decree passed by the District Judge and therefore, it may be executed either by the District Judge himself or by the Court to which it may be transferred for execution under Section 39 of the CPC. There is not much dispute with this provision also.¹²When the execution petition was stayed by the appellate court and during pendency of appeal the said court before which the execution petition was pending ceased to have jurisdiction, the Decree Holder is entitled to file a second execution petition, after dismissal of appeal, the second execution before the newly constituted court after withdrawing the first execution petition.¹³

3.1. Court which had passed the decree will not lose jurisdiction to execute it, if jurisdiction is transferred to another court after the decree

There was a conflict of opinion among different High Courts whether the jurisdiction of the original Court i.e. the Court which had actually passed the decree will be lost when once the jurisdiction is transferred to another Court. This conflict was set at rest once by the judgment of the Supreme Court. It is not a settled law that the Court which had passed the decree does not lose its jurisdiction to execute it, by reason that the subject matter thereof being transferred subsequently to the jurisdiction of another Court. The Court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution application with reference thereto, it would, at the worst, be an irregular assumption of jurisdiction and not a total absence of it, and if an objection to it is not taken at the earliest opportunity, it must be deemed to have been waived and cannot be raised at any later stage of the proceedings.

Therefore it is clear, that in a case where the territorial jurisdiction of a Court is transferred after passing of the decree, execution lies both in the Court which passed the decree and in the Court to which the territorial jurisdiction is transferred.¹⁴ Thus, a combined reading of Sections 37 and

38 indicates that the Court of first instance is the Court which passed the decree within the meaning of Section 38.

By going through the Objects and Reasons for introducing Explanation to Section 37, it is undoubtedly made clear that the Court which passed the decree does not lose its jurisdiction to execute it by reason of transfer of the jurisdiction over the subject matter to any other court. On the other hand, the Court which passed the decree as well as the Court to which the jurisdiction is transferred are having jurisdiction to entertain the application for execution of the decree. In other words, the Court which passed the decree can either execute the same by entertaining an application or it can transmit the decree to the other Court which is conferred with the jurisdiction by virtue of the amendment.¹⁵ At any event, when the Court which passed the decree does not lose its jurisdiction to execute the decree, it is not for the judgment debtor much less the petitioner like third parties to question the jurisdiction of such Court which passed the decree and seek for transfer of the execution petition to the other Court.

4. Creation of jurisdiction on transfer of decree – Introduction

Sec. 39 of the Code reads:

Section 39 - Transfer of decree :( 1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction--

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.

(4) Nothing in this section shall be deemed to authorize the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.

The Court which passed the decree may send the same for execution to another Court of competent jurisdiction, on the application of the decree-holder. Those Courts to which the decree may be sent are:

(a) within the local limits of the jurisdiction of a Court where the JDr actually and voluntarily resides or carries on business or personally works for gain;

(b) to a Court within whose territorial jurisdiction the property sufficient to satisfy the decree against the JDr is situate;

(d) to such other Court, if the Court which passed the decree considers for any other reason in writing that the decree should be executed by such Court.

Sub-section (2) of Section 39 enables the Court which passed a decree to transfer it to any subordinate Court, even of its own motion, without an application by the decree holder. Sub- section (3), has created a deeming fiction, that a Court to which an application for the transfer of the decree is made, has jurisdiction to try the suit in which the decree was passed, then it could also be deemed to be a Court of competent jurisdiction. Sub-section (4) inserted under the Amendment Act 22 of 2002, places an embargo upon a Court which passed the decree to execute such a decree against any person or party outside the local limits of its jurisdiction. Section 41 of the Code imposes an obligation upon the executing Court to inform the Court which passed the decree, about the completion of execution or about the failure to execute the decree along with the attending circumstances.

A perusal of Section 39 would show that a decree may be sent to other Court for execution either for the reasons contemplated under sub-clauses (a) to (d) of sub-section (1) of Section 39 or by the Court, which passed the decree, on its own motion. Thus, an execution of the decree has to be done only as per Sections 38 and 39 of CPC.

4.1. Lands in more than one jurisdiction

From sub-clause (4) of Sec. 39, it emerges that if the property against which or the person against whom the decree is to be executed is outside the local limits and jurisdiction of the Court which passed the decree, then, the provision under sub-sees. (1) to (3) of said Sec. 39 will not authorise such Court to execute the decree.

But, Order 21 Rule 3 prescribes that where immovable property forms one estate or tenure situates within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate or tenure.

5. Transfer of the decree by a Court of Small Causes

The A.P. Small Causes Courts Act (as amended by Act 15/2005) did not contain any specific provision empowering the Small Causes Court to transfer its decree for execution by a regular Civil Court or to any other Court of Small Causes. Order 21 Rule 4 CPC provides power in the Civil Court to transfer its decree to the Small Causes Court for execution. It may be noted that the Small Causes Court cannot execute the decree by attachment and sale of immovable property as provided in Order 21 Rule 82 CPC. In case the fruits of decree have to be realised by sale of immovable property belonging to the defendant, necessarily the DHr should get the decree transmitted to a Civil Court as he has no other option to realise the amount due under the decree granted by a Small Causes Court.

Section 9(1) of the A.P. Small Causes Courts Act, 1330F (amended in 2005) reads: “a Court of Small Causes shall, in the trial of suits by it and in proceedings ancillary thereto, as far as possible, follow the provisions of the Code of Civil Procedure, 1908, except those specified in the schedule annexed hereto.” The schedule did not exempt the provisions of Code relating to execution of decree and Orders more specifically Order 21 Rule 4 CPC. The expression ‘ancillary proceedings” used in Section 9 of the Act may be taken to include the execution proceedings with reference to a decree granted by the Court of Small Causes. A comprehensive reading of the above provisions would make it clear that the Small Causes Court can transfer the decree passed by it to a civil Court for execution by virtue of Order 21 Rule 4 CPC.

This view is supported by Karnataka High Court, where the Karnataka State Small Causes Court Act containing provisions similar to the A.P. Act was considered.¹⁶ It is observed by the Court that the Karnataka Act provides only for establishment and administration of Small Causes Courts and the jurisdiction of those Courts, the procedure to be followed by a Small Causes Court in respect of the cases filed before it, and all other matters connected thereto including execution of decree, are governed by the Civil Procedure Code. Therefore, transferring of a decree from the Court which has passed it to another Court is a matter for which there is a provision in the CPC. A person who has obtained the decree from a Small Causes Court can make a request to that Court either to execute it or to transfer the same to another Court for execution. It is the right given to the DHr. Therefore, it is held that, the absence of a specific provision in the Karnataka Act, similar to the one contained in the Presidency Small Causes Courts Act, will not, in any way affect the jurisdiction of Small Causes Court to transfer the decree to another Court. If once the decree of Small Causes Court is transferred to a regular civil Court, the bar against sale of immovable property imposed by Order 21 Rule 82 may not be operative.

When Section 19 of the A.P. Act mentions Order 21 Rule 6, regarding the documents to be sent along with the decree of Small Causes Court to another Court for execution, it is made very clear that it is imbedded in the A.P. Small Causes Courts Act, that the procedure for execution shall be as in Order 21 of CPC only and that must be the reason why in Order 21 Rule 82 only the powers of Small Causes Court in the execution are limited by the Code.

5.1. Return of decree to the Transmitting Court - the jurisdiction of transferor Court ceases

Rule 208 Civil Rules of Practice prescribes that the Court to which a decree is sent for execution shall certify to the Court which sent the decree, the fact of execution of such decree specifying the nature and extent of satisfaction, or where the former Court fails to execute the decree, the circumstances attending such failure. If the DHr does not apply for execution of the decree thus transferred to another Court for execution within six months from the date of the receipt of the decree on such transfer, the Court to which the decree has been sent shall certify the fact that no application for execution has been made to the Court which passed the decree and shall return the decree to that Court. The jurisdiction of the transferee Court ceases when the copy of the decree is returned by that Court to the Court that transferred the decree with a certificate of non- satisfaction. This opinion is based on Section 41 which provides that while returning the copy of the decree sent to it. Court to whom a decree is sent for execution shall certify to the Court which passed it the fact of such execution or where the former Court fails to execute the same in the circumstances attending such failure. It may however be noted, Section 41 CPC does not refer to the transferee Court.

5.2. What are the powers that remain with the Court transferred the decree after transfer

Mulla in his celebrated Text Book on the Code of Civil Procedure at page 173 comments that “after transferring a decree to another Court for execution, the Court which passed the decree cannot itself execute the decree; and an application for execution made to it after the transfer and before a certificate of non-satisfaction under Section 41 has been returned, is not even a step-in- aid of execution so as to save limitation.” There may be another view also. It is that there is no justification for holding that the transferor Court cannot execute a decree after it is transferred to another Court; and that when the transferor Court transfers a decree, it does not divest itself of its power but only vests the transferee Court with powers it would not otherwise have. The difference of opinion mainly turns on the construction placed on the judgment of Privy Council.¹⁷

The Court which passed the decree does not altogether surrender control of the execution proceedings. It has power under Order 21 Rule 26 to pass an order for stay of execution. It may withdraw execution by calling back the decree; or it may make an order for simultaneous execution by another Court; or it may make an order for rateable distribution. It has moreover, jurisdiction to decide an objection as to limitation if referred to it by the transferee Court. If the decree is assigned after transfer, the assignee must apply for execution to the original Court. If after a decree has been transferred for execution the JDr dies, the Court which passed the decree, by Section 50 CPC, is the proper Court to order that execution should proceed against the legal representative.¹⁸

5.3. Attachment of salary – Section 39 has no application

A reading of Order 21 Rule 48 made very clear that so far as the attachment of the salary is concerned, the Court which passed the decree may also order attachment of the salary of the JDr who is working outside the jurisdiction of that Court also. The Court can order attachment where the JDr or Disbursing Officer is or is not within the local limits of the jurisdiction. Order 21 Rule 48 is the appropriate Rule that has to be applied to such a case. The explanation of this rule clarifies what is the ‘appropriate Government’. Unless and otherwise ordered by the Government, the Disbursing Officer is the competent person to attach the salary. Therefore, Section 39 has no application in respect of EP filed for attachment of the salary. ¹⁹

6. Jurisdiction & Powers of Court in executing the transferred decree

Section 42(2) empowers the Court to which a decree is transferred, to send it to some other Court for execution. For this purpose, the transferee Court would have the same power as that of the Court which passed the decree. Sub-section (2) lists out the powers which are generally be enjoyed by the transferee Court. They are (a) power to send the decree for execution to another Court under Section 39; (b) power to execute the decree against the legal representative of the deceased JDr under Section 50 and (c) power to order attachment of a decree. The Court exercising such powers under sub-section (2) above shall communicate its order to the Court which passed the decree. Sub-section (4) of Section 42 contains two limitations to the power of the Court to which a decree is sent for execution. It has no power to order execution at the instance of the transferee of the decree; and (b) in the case of a decree passed against a firm, power to grant leave to execute such decree against any person, other than such a person as is referred to in clause (b), or (c) of sub-rule (1) of Rule 50 of Order 21.

A comprehensive analysis of various provision of the Code would show that every decree of a civil Court is liable to be executed primarily by the Court which passed the decree. Therefore, an application for execution is expected to be filed in the first instance, only in the Court which passed the decree. It is only in cases where the Court which passed the decree is unable to execute it, and then the provisions for the transfer or transmission of such decree and the procedure prescribed there under come into play.

6.1. Whether the Court having territorial jurisdiction over the mortgaged properties could entertain a petition for execution of a decree passed by another Court which ceased to have territorial jurisdiction but which still exists, in the absence of a notification transferring the business or an order under Section 24 or Section 39 CPC?

A decree was passed by the Subordinate Judge Court, Guntur and execution of that decree was levied. Sometime later, a Subordinate Judge’s Court was established at Narasaraopet and its jurisdiction included the village in which the property sought to be proceeded against are situate. Notwithstanding the continued existence of the Subordinate Judge’s Court at Guntur, the DHr filed EP in the Court at Narasaraopet. The JDr raised the objection that the Court at Narasaraopet had no jurisdiction to entertain the execution petition, as the Subordinate Judge’s Court, Guntur continued to exist and no notification was issued transferring the business concerning the suit or an order passed under Section 24 or Section 39 CPC. Though the Subordinate Judge, Narasaraopet upheld this objection, the High Court reversed it and held that the Court which has territorial jurisdiction could always take cognizance of the execution petition notwithstanding the continued existence of the Court which passed the decree. In the Letters Patent Appeal, the question was whether it was competent for the Subordinate Judges Court, Narasaraopet, to entertain the EP in the circumstances above. The Bench examined this question from the perspective whether that question is capable of only one answer and that is that the DHr could not file an EP in the Court at Narasaraopet so long as the Court which passed the decree exists and so long as there is no transfer of business by the District Court to that Court or an order passed under Section 24 or 39. Considering the views of Full Bench expressed in Ramier’s case²⁰ it was held that the view of the learned Single Judge that the Court having territorial jurisdiction could always take cognizance of an execution petition though it is not ‘the Court which passed the decree’ and though the Court which passed the decree continues to exist is erroneous. Consequently the order of the Trial Court was restored.²¹

6.2. Executing Court is not Transferee Court under Section 150 CPC

If the business of any Court is transferred to any other Court the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under the Code upon the Court from which the business was so transferred. Whether the expression ‘transfer of business’ is similar to the process of transfer of a decree for execution covered by Section 39 is the question. An ex parte decree was granted at Madras and the decree was transferred to District Munsif, Bhongir for execution. The JDr²⁰ Ramier vs. Muthukrishna Ayar, ILR 55 Mad 801=AIR 1932 Mad 418 (FB) ²¹ Guntupalli Hanumayya vs. Ravella Venkata Subbaiah, AIR 1964 AP 68 (DB)

(Defendant) applied in the Court at Bhongir for setting aside the decree granted against him ex parte. It was argued that because the decree is transferred to the District Munsif, Bhongir, which can be said to be transferee Court, an application to set aside an ex parte decree lies before the transferee Court. It is also argued that it is not necessary that the application under Order 9 Rule 13 CPC be made to the Court that passed the decree and the transferee Court is competent to set aside an ex parte decree.

The High Court of Andhra Pradesh is of the opinion that Section 150 by analogy cannot be applied to transfer of a decree under Section 39 for execution. It is pointed out that, at the outset it has to be noted that the transmission of a decree for execution to another Court does not amount to transfer of business from one Court to another. The transfer of business contemplated by Section 150 would arise where cases are transferred under Section 24 CPC or where on account of reorganization of the Courts or by creation of new Courts, certain areas are taken on to new Court, on account of which the business pertaining to that area pending on the file of one Court is transferred to the file of any newly constituted Court.

But Section 150 CPC does not take into its ambit decrees which are transmitted or transferred from one Court to another. There is a specific provision in the Code with regard to transfer and execution of decree passed by one Court by the other. The powers of the Executing Court are mentioned in Section 42 wherein the powers of the original Courts vest in the executing Court only to the limited extent and purpose of executing the decree. The Executing Court cannot certainly be said to be a transferee Court in the sense that the business is not transferred to it.²²

6.3. Stay of execution – Power of Transferee Court

Order 21 Rule 28 provides that any order of the Court by which the decree was passed, in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution. Rule 29 provides that where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed the Court may, on such terms as to security or otherwise, as it thinks fit stay execution of the decree until the pending suit has been decided. It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one Court; one is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the instance of the judgment-debtor and the other suit at the instance of the judgment-debtor against the decree- holder. That is a condition under which the Court in which the suit is pending may stay the execution before it. In the given case, the decree sought to be executed by the Court of Munsif, Gaya was not the decree of that Court but decree of the Subordinate Judge, Gaya exercising Small Causes Court jurisdiction and so, the Court of the Munsif had no competence under Order 21 Rule 29 to stay the execution of the decree. ²³

6.3.1. Decision on executability of decree by transferee court: Where the objection is regarding executability of the decree on the ground that the transferor executing court had no jurisdiction to pass the decree, whether such objection could be entertained and decided by the transferee executing court, one may usefully recall that Sec. 42(1) which says that the Court executing a decree sent to it shall have "the same power in executing such decree as if it had been passed by itself". Further, Order XXI, Rule 6 of the Code deals with the procedure where the Court decides that its own decree shall be executed by another Court.

It may be possible for the executing Court in two contingencies to report to the transferor Court that execution is not possible -when a decree has been passed against a dead person or the decree is passed by a Court which is not constituted in accordance with the law. But it is not as if under Sec.42 of the Code the transferee executing court has all the powers, co-terminus with the Court which passed the decree for its execution -the power of the transferee executing court conferred by Sec.42 is only that power of the Court which passed the decree "in executing such decree". The function of the transferee executing court is to execute the decree in the way the Court which passed the decree could have done it. Along with said provision, Sec.41 of the Code has also to be read. Under that provision, the transferee executing court is to certify to the Court which passed the decree the fact of such execution, or where the former court fails to execute the same, the circumstance attending such failure.

The view taken by the Andhra Pradesh, Punjab and Madhya Pradesh High Courts is that Sec.42 of the Code gave power to the transferee executing court co-terminus with the power of the transferor Court in respect of any and every matter while dealing with the decree.²⁴ But Kerala High Court took contrary view.²⁵

6.4. Court cannot execute decree outside its jurisdiction

According to Section 39, it does not authorise the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance of conditions stipulated in those provisions. Thus, the provisions, such as, Order 21 Rule 3 or Rule 48 which provide differently would not be affected by Section 39(4) of the Code.

6.5. Appellate Court is not empowered to be Executing Court

It is plain from the language of Section 37, even in a case where the decree to be executed has been passed by the appellate Court; jurisdiction is conferred upon the trial Court in that behalf. This would disclose the intention of the Legislature that even where the decree is passed by the appellate Court reversing that of the trial Court, the function of executing that decree should be entrusted to the Court of first instance. The appellate Court cannot exercise the jurisdiction of an executing Court and there does not seem to be any provision of law which empowers the appellate Court to entertain an execution petition.²⁶

6.6. In the case of award of Arbitral Tribunal

Earlier view was that the arbitral award can be filed in execution before the Court of Junior Civil Judge, Senior Civil Judge and District Judge or Additional District Judge depending upon amount awarded in the award subject to territorial jurisdiction. The Additional District Judge is not subordinate to the Principal District Judge and for all intended purposes the Court of Additional District Judge is have same powers and shall exercise the powers as District Judge. If the Court which passed the decree ceased to exist or the Court ceased to have jurisdiction to execute the decree, in either case the Court which would have jurisdiction to try such suit, is the Court to execute the decree.²⁷

Sec. 42 of the A & C Act reads:

Section 42: Jurisdiction: Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to any arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court. Supreme Court has taken a view that Section 2(1)(e) of the Act contains a scheme different from that contained in Section 15 of CPC.²⁸ A meticulous survey of decisions of the Supreme Court and the High Courts of various States including AP High Court, , makes it clear that the “Court” referred to in Sections 34 and 36 of the A &C Act is the “Court” as defined under Section 2(1)(e) of the Act and, thus, in unmistakable terms refers to a “District Court”, but not the character of a grade inferior to the Principal Civil Court of original jurisdiction. Therefore, the Division Bench of AP High Court that Section 42 of the Act applies only to the applications made under Part - I, if they are made to a Court as defined under the Act and the applications made under Sections 8 and 11 of the Act would be outside Section 42 of the Act, and, thus, it is clear that reference to the “Court” mentioned in Section 42 of the Act also relates to the “Court” defined under Section 2(1)(e) of the Act i.e. principal court of original jurisdiction viz., District Court. Therefore the Enforcement of award has to be applied before the Dt Court only.²⁹

Hence the Court where any application under part I of the A & C Act is made would alone have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that agreement and arbitration proceedings would be in that Court. The Court considered with special emphasis upon “all subsequent applications arising out of arbitration proceedings” The Court held that that expression must be read in a comprehensive manner to include recourse to execution proceedings and that it must be given its full with in interpretation.

6.7. Court cannot insist the Arbitration Award Holder to get transmission of Arbitral Award

An award passed by an Arbitral Tribunal is liable to be enforced under Section 36 of the Act, in the same manner as if it is a decree of the Court, in terms of the provisions of the Civil Procedure Code. In other words, an award passed by the Arbitral Tribunal is equated to the decree of a Court, for the purpose of execution and only for that purpose. But according to Section 19(1) of the Arbitration and Conciliation Act, 1996 the Arbitral Tribunal is not a Court. It therefore follows that the Arbitration and Conciliation Act elevates an award to the level of a decree, for the purpose of execution though it does not elevate the tribunal to the status of a Civil Court. Under that Act, an award can be executed directly without a seal of approval by a civil Court as under the earlier Act of 1940. When the award of the Arbitral Tribunal is deemed to be a decree, it follows as a corollary that the Arbitral Tribunal is in the position of a Court which passed the decree for the purpose of execution. But, no application for execution can be presented to an Arbitrator by the holder of an award under Order 21 Rules 6 and 10 of Code on the ground that the tribunal is the Court which passed the decree and so, the provisions of Section 38 and Order 21 Rules 5, 6 and 10 of the Code cannot be applied to an Arbitral Tribunal. To put it differently, it is only when an award holder is entitled to file an execution petition before the Arbitral Tribunal itself under Order 21 Rule 10, treating it as a Court which passed the decree that the provisions of Order 21 Rules 5 and 6 come to play. Because the tribunal is not a Court, it cannot order the transfer of the decree (award) to any other Court for its execution. Similarly there is no provision either in the Code or anywhere else, to treat a Court, within whose jurisdiction the Arbitral proceedings took place, as the Court which passed the decree. It is only when a Court within whose jurisdiction the award was passed, is taken to be the Court which passed the decree within the meaning of Section 37 and Order 21 Rule 10 that the award holder would be entitled to seek transmission from that Court. There is no deeming fiction anywhere to hold that the Court within whose jurisdiction the award was passed should be taken to be the Court which passed the decree. Therefore, the whole procedure of filing an execution petition before the Court within whose jurisdiction the award was passed as though it is the Court which passed the decree is pathetically misconceived. No Court to which an application for execution of an award is presented, can insist on the filing of the execution petition first before some other Court and to have it transmitted to it later.

In the background of this discussion, the Madras High Court held that the Arbitration & Conciliation Act, 1996 transcends all territorial barriers. Consequently it is open to the parties to a dispute, to choose, for instance, Bangalore or Bombay as the venue of arbitration, despite both parties being at Chennai. In case it happens and an award is passed at Bangalore or Bombay, would it be necessary for the award holder to file an execution petition before the Bangalore or Bombay Court and get it transmitted to Chennai in terms Order 21 Rules 5 and 6? The Court observed that in the absence of any provision in the 1996 Act, requiring a Court to pass a decree in terms of the award (except in terms of Section 34) and in the absence of any provision in the 1996 Act making the Arbitral Tribunal a Court which passed the decree and in the absence of any provision anywhere making the Court within whose jurisdiction an award was passed as the Court which passed the decree, it is open for any executing Court (1) either to demand transmission from any other Court; (ii) or to order transmission to any other Court. The Court directed the lower Court to number the EP without insisting upon a transmission order and proceed with the execution petition.³⁰

The A.P. High Court has also taken the same view. An Arbitrator from Chennai was chosen and he passed an award in favour of the petitioner. The parties are residents of Visakhapatnam and so the Court at Visakhapatnam was competent for the petitioner to file the execution petition in the Court of the Principal District Judge, Visakhapatnam for enforcement of the award. The petitioner filed an execution petition before the Court of the Principal District Judge, Visakhapatnam with a prayer to transfer the decree to the Court of Principal District Judge, Ranga Reddy District on the allegation that the respondents own several items of property within the jurisdiction of the District Court, RR District. That application was rejected by the District Judge, Visakhapatnam on the ground he has no jurisdiction and that order was challenged in the Revision. It is argued that once a decree is enforceable in the Court of District Judge, Visakhapatnam, by that very logic and reasoning, it is capable for being transmitted to the Court of District Judge, RR District. The Court is of opinion that the award passed by an arbitrator is entrusted to civil Court for enforcement and it can be straightaway executed as though it is a decree. As per Section 38 CPC, a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. The Court at Visakhapatnam did not pass any decree and the powers conferred upon such Court are very limited, in the sense that the award passed in arbitration has to be implemented as it is. Even the powers available under Section 47 CPC cannot be exercised in relation to such an award.

Therefore, a decree passed by a civil Court on the one hand and an award passed by an Arbitrator on the other, cannot be equated in the context of exercise of powers under Order 21 Rule 5. It is further held that it is only a Court, which passed the decree that can transfer or send it for execution to another. And such a power is not available vis-a-vis an award. As the Court did not explain what should be done in case the award has to be executed elsewhere than the place of residence of parties or the place where the award is passed, on the ground that the properties are situated at a different place for realisation of fruits of award, it goes without saying that the award can be enforced straightaway without the necessity of transmission as in the case of decree granted by a civil Court.³¹ It is argued before the Delhi High Court, by the judgment (award) debtor that unless the award is transferred from the Courts at Guhawati/Golghat, the same cannot be executable by attachment of the properties. The Court felt that as there is no decree of those Courts, no such transfer of decree can be expected and held that without the fetter of Section 38, the Courts of the place where the property against which the decree is sought to be enforced is situated would have inherent jurisdiction to entertain the execution.³²

6.8. Whether a decree can be executed in more than one Court simultaneously, against different properties?

Yes. Simultaneous execution proceeding in more places than one is possible but the power is used sparingly in exceptional cases by imposing proper terms so that hardship does not occur to Judgment debtors by allowing several attachments to be proceeded with at the same time. ³³

7. Competence of executing Court:

Relevant provisions from the Code

Sec. 47: Questions to be determined by the Court executing decree:

(1) All questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

[Explanation I .--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II .--(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or hi s representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]

Order XXI Rule 58: Adjudication of claims to, or objections to attachment of property:

(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained :

Provided that no such claim or objection shall be entertained--

(a) where, before the claim is preferred or objection is made, the property attached has already been sold ; or

(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,-

(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit ; or

(b) disallow the claim or objection ; or

; or

(d) pass such order as in the circumstances of the case it deems fit.

(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute ; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.]

Order XXI Rule 101: Question to be determined: All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.]

7.1. “Executing Court cannot go behind” a jurisdictional dogma -an analysis

It is axiomatic that an executing court cannot go behind the decree. The correctness and validity of the decree cannot be challenged in execution. Once a decree is passed, the executing Court cannot go behind the decree or merits of the case.

For example, an ex-parte decree is as well executable as a contested decree. If the contention of the JDr is that the decree has been obtained by the plaintiff who is not entitled to a decree, or that it was obtained by fraud etc., that question has to be agitated in the suit or by challenging the decree by way of appeal, review or revision whatever provision may apply. In other words, the executing court must take the decree according to its tenor; has no jurisdiction to widen its scope and is required to execute the decree as made by the trial court.³⁴ While considering an order of modification of the compromise decree by the executing court it was held that it will amount to modification of decree and, therefore, the same is without jurisdiction.³⁵

The conditions which stand beyond the scope of the suit or falling outside the subject matter of the suit and included in the decree as conditions regulating the execution of the compromise decree, is legally valid and permissible. It follows therefore, unless and until that condition regulating the execution of the decree is satisfied, this decree cannot be executed. When a compromise decree is passed on term of the agreement containing conditions beyond the subject matter or scope of the suit, in execution, parties cannot turn round and contend that such conditions are invalid and unenforceable as the same goes beyond the scope of the suit or falling outside the subject matter.

7. 1. Exceptions to the rule: There are exceptions to the above rule. While it is true that an executing court cannot go behind the decree under execution, but that does not mean that it has no duty to find out the true effect of that decree. At any rate, the executing court cannot suo moto decide the legality of the decree without there being a challenge by the party to the decree.³⁶ The following circumstances may be examined which are available to challenge validity of decree before executing court.

1) Where the decree is ambiguous: When an ambiguous decree is passed, it is the duty of the executing court to interpret the decree and for this purpose the court is entitled to look into the pleadings and the judgment. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it.³⁷

2) Where the decree suffers from lack of jurisdiction in the court that passed the decree: An executing court can only refuse to execute an order or decree if the same suffers from the vice of lack of inherent jurisdiction of the court passing such order or decree. According to the law laid down by the Supreme Court,³⁸ if the decree is not challenged in the appeal or if the appellate decree is not challenged before the superior court with success, in absence of interference in the execution proceeding any part of the decree cannot be called in question, save and except on the ground of nullity of the decree for lack of jurisdiction of the court which has passed the decree under execution.

When the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.³⁹

The defect of jurisdiction strikes at the very root and authority of the Court to pass decree which cannot be cured by consent or waiver of the parties. ⁴⁰Where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the Court to try the case and a decree which is a nullity is void and can be declared to be void by any Court in which it is presented.

3) Where the decree is obtained by fraud etc: Fraud and justice do not dwell together. Question as to whether a plea of fraud could be entertained even in collateral proceedings, at the stage of execution, after passing of the decree, is no longer res integra. Its nullity can be set up whenever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. A decree can only be challenged on the ground that it had been obtained by fraud or misrepresentation of fact. Fraud has to be pleaded and proved by the person alleging that he has been duped.

The executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree.⁴¹ By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. even in execution if it is shown that the order was made upon mistake or fraud which affects the very validity of the order under execution rendering it ineffective, it can properly be questioned by any one. Section 44 of the Evidence Act in terms applies to such matters and permits a person to lead evidence to show that the order is not binding in any such proceeding. Under Section 44 of Evidence Act, a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a Court without jurisdiction or was obtained by fraud or collusion and is not necessary to bring an independent suit for setting it aside.

4) Where the decree is void & nullity: What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such nullity based on want of jurisdiction; else the normal rule that an executing Court cannot go behind the decree must prevail.⁴² When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who Was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution.⁴³

If the JDr challenged the legality of a foreign court’s decree on the ground that it was obtained by playing fraud, since the fraud alleged is prior to the judgement, it is held that on that ground the decree cannot be impugned. If such a defence was allowed it would mean a new trial on merits. The Court observed that if such a defence was not taken in the claim/suit itself it would not have been an issue between the parties and could never been decided by the foreign Court. It was, therefore, held that such an issue cannot be considered by the executing Court as such a Court would not retry any issue.⁴⁴ The fraud, if any, alleged by the defendant to stall an execution of a decree even of a foreign Court must be a fraud which was discovered by the defendant since the date of the foreign judgment and, therefore, not before the judgment was passed. Hence the Supreme Court held in the case of Sankaran⁴⁵ that to successfully prevent the foreign judgment from being executed the judgment debtor must show a case of fraud not on the defendant but a fraud practiced upon the Court and to see that the Court was deceived thereby.

5) Where the interest is wrongly awarded: Where the loan was for agricultural purpose when future interest would not more than 6% and under Sec. 34 CPC, the Court while passing a decree, had no jurisdiction to grant more than 6% future interest as the transaction of debt was a crop loan and agricultural loan could not be considered as a commercial loan, the Executing Court could examine if the decree was passed by the Court was in conformity with the first proviso to Section 34 of the Code.⁴⁶But at the same time, the executing court has no power to grant interest which was not granted by the trial court.⁴⁷ If the land acquisition reference Judge has rightly or wrongly specifically rejected the prayer for grant of interest on solatium then the Executing Court cannot grant such interest.⁴⁸However, the Court observed that there were a large number of cases where there is no specific reference to interest payable on solatium and there may also be cases where claim for interest on solatium had not been made and, therefore, there was no question of accepting or rejecting such a claim. In these cases the Apex Court held that the executing Court was free to follow the judgment of Sunder (supra) and grant interest on solatium but with the caveat that in such cases the interest would be awarded only from 19.09.2001 i.e. the date when Sunder’s case was decided. Further, the Apex Court also made it clear that the executing Court could award interest on solatium only in pending executions and where the execution proceedings had been disposed of, the matter could not be re-opened.

6) Where there is conditional decree: In case of a conditional decree, if the decree-holder fails to deposit the remain sale consideration within the specified time as per the judgment and decree, rejection of execution petition by the Executing court on the ground of delay in depositing of sale consideration is a valid order.⁴⁹

7) Where the direction in the decree is against public policy: Where alienation of certain property is prohibited on grounds of public policy, either under the general law or by statute, the executing Court can refuse to execute a decree which directs such a sale.⁵⁰

8) In the enquiry under Order 21 Rules 97 to101: The rule that the executing court cannot go behind the decree is not available to the decree holder or auction purchaser in the case of adjudication under O.21 R.97 to 101 C.P.C. It is relevant to note that the authority given to the court under R.98 and 100 of O.21 C.P.C. Includes a power to put the decree holder or auction purchaser (who are the applicants under O.21 R.97 C.P.C.) or the stranger obstructer (who is the applicant under O.21 R.99 C.P.C.) to be put in possession of the property. It is such an order passed under Rules 98 or R.100, as the case may be or O.21 C.P.C., which will be deemed to be decree and which will be executable and appealable. Such an order supercedes the earlier decree to which the stranger obstructer was not a party. In that way, the executing court is going behind the decree.

9) Delivery of property in a decree for specific performance: Possession can be granted in a suit for specific performance even though that relief was not sought for in the suit without amending the relief.⁵¹ A direction to deliver possession of the property is incidental to a decree for specific performance of an agreement to sell immovable property, and, therefore, the executing Court has jurisdiction to delivery of possession, although the decree in the suit for specific performance does not provide for delivery of possession. It cannot be said that in such a case the executing Court cannot go behind the decree and order delivery of possession. ⁵² Therefore, the executing Court has jurisdiction to grant the relief of possession as incidental to the execution of the decree for specific performance of a contract of sale.

10. Order in the writ is not executable in civil court: The Civil Court has no jurisdiction to entertain an Execution Petition for execution of the order for payment of costs passed by the High Court in a Writ Petition, unless the High Court specifically issues a direction thereof.⁵³

11. Which property Cannot be attached in the execution of decree?

A partnership property cannot be attached in the execution of a decree[51]. Such an attachment would be allowed only in a situation where the decree is passed against the firm or the partners[52].

VINOD KUMAR GOYAL, ADVOCATE

Supreme Court of India

Office _ B – 109, Shashi Garden, Mayur Vihar – 1 Delhi -110091 ‘

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