UMA KANORIA Vs. PRADIP KUMAR DAGA

JUDGEMENT

(1.) In this execution application a point has been taken by the judgment debtors on the question of jurisdiction of this Court. The mode of assistance of the claim in this application is for oral examination of the judgment debtors namely Pradip Kumar Daga, Smt. Asha Daga, Yashwant Kumar Daga and Smt. Nandini Daga under Order XXI, Rule 41 of the Code of Civil Procedure and the Judgment debtors are also directed to make and file their affidavit, stating the particulars of the assets of the judgment debtors.

(2.) Mr. Tilak Basu, learned Counsel while opposing his application contends that admittedly the notice from this department has been issued at the address of the judgment debtors situated at 5, Merline Park, Calcutta -700 019 outside the territorial limit of the Original Civil Jurisdiction of this Court. Therefore, his contention is that in view of provision of Section 39 of the Code of Civil Procedure as amended this Court has no power to execute this decree against the aforesaid persons who reside outside the local limits of this jurisdiction. He has drawn my attention to the recent amendment by way of insertion of sub-section (4) of Section 39 of the Code of Civil Procedure Code. Even before amendment the judicial pronouncement of this Court was to the effect that the Court, which passed decree, could not have any jurisdiction to execute the same in case of a person against whom the decree is sought to be executed, residing voluntarily or working for gain or the property situated outside its jurisdiction and this was and still is required to be transferred under Section 39 of the said Code. His contention is that the word "may" used in Section 39 of the said Code employs and suggests having regard to the object of the aforesaid section, is mandatory. In support of his submission he has relied on decisions of the Division Bench of this Court reported in AIR 1932 Cal 213 (Hari Das Basu v. National Insurance Company Ltd.) and AIR 1961 Cal 422 (Benaras Ice Factory Ltd. v. Sukhlal Amarchand Vadnagra). He has also relied on decision of the Bombay High Court reported in AIR 1985 Bom 79,.

(3.) Mr. Soumen Sen appearing for the decree-holder submits that the provisions of Section 39 of the said Code is discretionary power of the Court which has passed a decree. The jurisdiction to execute a decree emanates from Section 38 of the said Code. Provisions of both the Sections are to be read conjointly. It will appear therefrom, that the power of the transfer of the Court which has passed a decree is absolutely optional. Ordinarily the Court should transfer the decree in the event the conditions mentioned in Section 39 having been fulfilled. The word "may" used in Section 39 of the said Code is discretionary. In support of his submission he has relied on a decision of this Court reported in AIR 1937 Cal 570 (H.N. Dutta and Company v. Smt. Tarubala Dassi). His further contention is that the aforesaid point has been considered by the learned single Judge of this Court in an unreported in decision and held that on the facts and circumstances which are identical to this one that this Court has jurisdiction to execute the decree even if the property situates outside the jurisdiction of this Court.