SUMERMAL SURANA Vs. PREMLATA KAKRANIA

JUDGEMENT

(1.) The only issue that arises for consideration is whether the judgment debtor could have been called for examination when she resides outside the jurisdiction of this Court. Section 39(4) CPC is contained in Part I of the CPC which contains the substantive law while the Rules and Orders is to be found in Part II CPC which deals with the procedure to be followed in execution. As Section 39(4) CPC bars execution against person or property and Order 21 Rule 41(1) and 41(2) lays the procedure for execution under Part II the bar imposed by the substantive provisions of law cannot be overridden by the Rules. Reliance is placed on 2012 AIR(Cal) 26 and (2012) 4 CHN 386.

(2.) Inherent lack of jurisdiction cannot be waived or acquiesced and therefore no order can be passed on this application.

(3.) Counsel for the decree holder submits that the examination has been made in aid of execution of decree. It is not execution itself. (2012) 4 CHN 386 is distinguishable on facts. Section 21(3) CPC makes it clear that at the first opportunity an objection must be raised. Rs. 50,000/- has been paid pursuant to order dated 14.6.2013. It is not a case of inherent lack of jurisdiction as held in 1962 AIR(SC) 199 to make the execution application a nullity. There is no bar to grant of injunction therefore such orders can be passed and thereafter the execution proceedings transferred. The conduct of the parties must be considered.