VISTRA ITCL (INDIA) LIMITED Vs. SANJAY DATTATREYA KAKADE

JUDGEMENT

(1.) When a Receiver is appointed in execution under Section 51(d) of the Code of Civil Procedure 1908 ("CPC"), is that appointment territorially constrained by Section 39 of the CPC, and, specifically by Section 39(4)? In other words, is the power of the Court to appoint a Receiver in execution limited or restricted to properties within the territorial jurisdiction of the Executing Court alone? This is the question that arises in the present matter in execution. I have heard Mr Chinoy and Mr Kamdar for the Decree Holder ("Vistra") and Mr Kapadia, Mr Sancheti and Mr Godbole for the answering Respondents at quite considerable length.

(2.) The proposition canvassed by Mr Chinoy and Mr Kamdar is that Section 51(d) only provides for modes of execution of a decree. The appointment of a Receiver is one such mode, but that appointment is not one to which every decree holder is entitled as a matter of right. At least on this there is no controversy: that the appointment of a Receiver even in execution is controlled by the provisions of Order 40 of the CPC. Specifically, Mr Chinoy agrees that a Receiver is not to be appointed, even in execution, merely for the asking.

(3.) In response, the case placed by Mr Kapadia, Mr Sancheti and Mr Godbole is that all acts of a Civil Court are governed by territoriality, and that this is true whether one looks at Section 16 to Section 20 of the CPC or Clauses 12 and 14 of the Letters Patent. It is their case, broadly stated, that Section 39 is a controlling provision. Mr Kapadia submits that when this Court on its Original Side, or, for that matter, any Civil Court, takes up execution, it is necessarily limited to execution against persons or properties within its jurisdiction. Section 39(4), in his submission, imposes a restraint or limitation not on what an Executing Court can do so much as against what and against whom it can legitimately proceed. While there is a slight differentiation in the submissions that Mr Sancheti and Mr Godbole make while supplementing Mr Kapadia's lead arguments, but very broadly stated all three Respondents are in agreement on this.