INDORE SOAP FACTORY Vs. NATIONAL INDUSTRIES CO

JUDGEMENT

(1.) THOUGH the parties are different, the main question for consideration in both the appeals by the respective judgment-debtors in the execution cases, is identical viz. whether in the absence of rules under Section 40, C. P. C. a decree transferred from a Court in another State can at all be executed by the transferee Court, as the case may be, the District Court itself, receiving the decree on transfer under Order 21 Rule 5 C. P. C. or the subordinate Court of competent jurisdiction to which a District Court in its own turn transfers the same under Order 21 Rule 5 C. P. C,

(2.) THIS question has been answered by the judgments of two single bench judgments of this Court in Chhegalal Ramniwas v. Shyamlal Parmatma Swarup, 1960 Jab LJ 612 : (AIR 1960 Madh Pra 387), and following it in the judgment dated 29th July, 1960 in Civil Second Appeal No, 103 of 1957, Maganlal v. Mercury paint and Varnish Co. Ltd. , Civil Second Appeal No. 142 of 1956, Ganatra hardware Stores v. K. Kurbanhussain and Co. , and Civil Revision No. 515 of 1958, sitaram v. Dr. Pratap Singh. However, the appellants in these appeals have urged that though two Single Benches have taken a concurrent view, the effect is not that of a Judgment of a Divisional Bench, on merits also there are certain aspects of the question, they urge, that have been overlooked in these Single Bench decisions.

(3.) AS a matter of fact, most of the High Courts have not yet framed rules under section 40 of the Code, so that the execution of decrees transferred from other states should be happening all over the country mostly in courts in the States where there are no such rules in force. The argument on behalf of the appellants is that till these rules are framed, such decrees may not be executed at all, because the transferee Court has to be such Court as is prescribed by these rules. As against it, it is pointed out that there is mining in Section 40 C. P. C. , indicating that action by the transferee Courts under other provisions is barred and that these rules were intended to be nothing more than the provisions supplementing these that are already in force and can be applied independently of the section. As already mentioned in the judgments referred to, it is the later view that has been commended itself to this Court. In fact, the absence of even a single ruling to the contrary, also shows that the Courts in other states are in practice following the same principles.