SREEKUMARAN NAIR Vs. DHANALAKSHMY BANK

JUDGEMENT

(1.) When the Court which passed a decree, on an application filed by the decree holder transfers the decree for execution against one of the judgment debtors to another Court, whether the transferee Court has jurisdiction to execute the decree as against the other judgment debtors. Even if it is possible to execute the decree as against all the judgment debtors by, the transferee Court, whether salary of a judgment debtor could be attached by that Court, when the disbursing officer of the judgment debtor is not within the jurisdiction of that Court and when judgment debtor is not an employee of the State or Central Government or railway company or corporation engaged in trade or industry established by Central, Provincial or State Act.

(2.) Facts are not disputed. First respondent Bank instituted O.S. 486 of 1996 before Munsiff Court, Pathanamthitta for realisation of the amount due. A decree for realisation of amount claimed in the suit was granted jointly and severally against all the three defendants on 30.7.1997. Decree holder filed E.P. 29 of 2005 before Munsiff Court, Pathanamthitta to issue notice under Rule 22 and to transfer the decree to Munsiff Court, Alappuzha for execution of the decree as against first judgment debtor. Notice was issued only to first judgment debtor. As per Ext.P 1 order dated 11.8.2005, after servicing notice on the first judgment debtor, execution petition was allowed and the decree as against first judgment debtor was transferred to MunsiffCourt, Alappuzha as he is residing within the jurisdiction of that Court. The other judgment debtors are residing and employed within the jurisdiction of MunsiffCourt, Pathanamthitta. The decree holder thereafter filed Ext.P2 petition (E.P. 142 of 2006) before Munsiff Court, Alappuzha for execution as against the first judgment debtor by attachment and sale of his property and to issue notice under Rule 37 for his arrest and detention. But judgment debtors 2 and 3 were also impleaded as respondents 2 and 3 in that execution petition. A prayer was also incorporated to serve Rule 22 notice on them. Notice was served. Decree holder thereafter produced a schedule for attachment of their salary and sought order of attachment. As per Ext.P3 order dated 27.11.2007, executing Court ordered attachment of the salary of third judgment debtor to the extent of Rs. 2,000/- or the maximum attachable portion of the salary as per Rules, whichever is less, for a period of 24 months. Third judgment debtor filed this petition under Article 227 of Constitution of India challenging Ext.P3 order. Petitioner contended that Munsiff Court, Alappuzha has no jurisdiction to execute the decree as against him, as the decree as against him was not transferred to that Court when only as against first judgment debtor the decree was transferred. It was also contended that in any event Munsiff Court, Alappuzha has no jurisdiction to attach the salary of the petitioner, who is not residing or employed within the local limits of that Court and therefore Ext.P3 order is illegal and is to be quashed.

(3.) Section 38 of Code of Civil Procedure provide the Court by which a decree is to be executed. A decree can be executed by the Court which passed the decree or to which it is sent for execution. Section 39 of the Code provides for transfer of the decree for execution. Under Sub-rule (1), the Court which passed a decree may send the decree for execution to another Court of competent jurisdiction, 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 jurisdiction of such other Court, or if such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient enough to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or if the decree directs sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or if the Court which passed by decree considers for any other reason to be recorded in writing that the decree should be executed by such other Court. Sub-rule (2) enables the Court which passed a decree on its own motion to send the decree for execution to any subordinate Court of competent jurisdiction. Sub-rule (3) provides that a Court shall be deemed to be a Court of competent jurisdiction for the purpose of Section 39, if at the time of making the application for transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. Sub-rule (4) provides that nothing in Section 39 shall be deemed to authorise the Court which passed a decree, to execute such decree against any person or property outside the local limits of its jurisdiction. Sub-rule (4) was inserted by Amendment Act 22 of 2002, which came into effect with effect from 1.7.2002. The object and reason for enacting Sub-rule (4) reveals that the amendment is clarificatory in nature.