SURAJ SINGH Vs. RAKESH

JUDGEMENT

(1.) This is an application under Sec. 24 Code of Civil Procedure seeking transfer of Execution Case No. 12 of 2007 filed in O.S. No. 357 of 1965 ( Rakesh and others Vs. Kale and others) pending in the Court of II Addl.Civil Judge(J.D.), Bulandshahr along with Civil Revision No. 54 of 2010 ( Suraj Singh Vs. Rakesh Singh & others) pending in the Court of Special Judge ( Gangster Act), Bulandshahr arising out of the order dated 30.3.2010 in Execution Case No. 12 of 2007 on an application under Sec. 47 C.P.C. to Gautam Budh Nagar on the ground that Gautam Budh Nagar has been separately carved out and other pending cases relating to newly created district has already been transferred. In this respect application for transfer has already been considered by the Court below and it has found that such transfer is not permissible having been filed in wrong Court and even otherwise by a person not entitled to move such an application and therefore, it has been rejected by Addl.District Judge, Court No.5/ Spl. Judge, Bulandshahr.

(2.) It is not in dispute that original Suit no. 357 of 1965 was decided and the judgment and decree was passed by 2nd Addl. Munsif, Bulandshahr on 19.11.1973. The decree holder proceeded for execution which was registered as Execution Case No. 12 of 2007 before the Court below i.e. Court of 2nd Addl.Munsif, Bulandshahr. The applicant-judgment debtor filed objection under Sec. 47 Code of Civil Procedure stating that execution is barred by time and even otherwise it is not maintainable. The said application was registered as Misc. Case No. 24 of 2008 and rejected by Executing Court i.e. 2nd Addl. Civil Judge (Jrnior Division), Bulandshahr by order dated 30.03.2010. There against, the applicant preferred Civil Revision No. 54 of 2010 before the District Judge, Bulandshahr which is now pending in the Court of Addl.District Judge, Court no.5, Bulandshahr. The applicant filed an application for transfer of Execution Case as also the Civil Revision to district Gautam Budh Nagar on the ground that disputed property after carving out of Gautam Budh Nagar as separate district, comes within the jurisdiction of new district. This application, numbered as 25-C, has been rejected by Addl.District Judge, Court No.5, Bulandshahr vide order dated 27.5.2011 on the ground that firstly, the application for transfer of execution case lies before the Execution Court itself and secondly such an application can be filed by decree holder and not the judgment-debtor. Learned Counsel for the applicant could not point out any provision under which merely on the ground that subject matter of decree falls within another district, at the instance of judgment debtor, case of execution stage is bound to be transferred to that place.

(3.) Even otherwise, I do not find any justification on the part of the applicant, to transfer the aforesaid cases. It is not disputed that powers under Sec. 24 Code of Civil Procedure is very wide but the Court itself must look into the ground taken for justifying transfer and pass orders only when such transfer is permissible in law and remain in the interest of justice.