SINDHU CHITS AND TRADING P LTD Vs. KHAYIRUNNISSA

JUDGEMENT

(1.) This revision petition is directed against the order of the lower court dated 18-4-1988 made in unnumbered Execution Case on the file of the Munsiff, Kunigal. At the time of admission notice has been ordered, the respondent has failed to appear in spite of the service of notice and he has been treated as an ex parte. The facts in this case are that the petitioner-decree holder through the official liquidator has filed the order dated 24-11-82 passed by this Court (Company Court) directing the judgment-debtors 1 and 2 to pay the Decree Holder a sum of Rs. 553-40 together with interest. The office raised an objection stating that the decree is not transferred to this Court as required under Section 38 of the C.P.C., as such the execution is not maintainable.

(2.) The learned A.G.P. appearing for the Official Liquidator has submitted that the order passed by the Company Court under Section 446 of the Companies Act, can be executed by this Court even though there is no order of transfer as required under Section 38, C.P.C. The lower Court has held that the order now sought is to be executed cannot be by this Court in view of Section 38 of CPC, which says that

(3.) The learned Counsel appearing for the petitioner has submitted that the Munsiff has committed the jurisdiction error in dismissing the execution on the ground that the decree for execution is not transferred under the provision of Section 38 of the Act. He further argued that the provisions of Section 634 and 635 of the Companies Act provide for enforcement of the order made by the Company Court in the same manner as a decree made by the Court in a suit pending therein, which has not been noticed by the lower Court.