RAJ KUMAR AND BROTHERS, BERMO THROUGH ITS PARTNER SRI SATISH KUMAR SAKHUJA Vs. HINDUSTAN STEEL WORKS CONSTRUCTION LIMITED, RANCHI THROUGH ITS MANAGING DIRECTOR

JUDGEMENT

(1.) IN this writ application the petitioner has prayed for quashing the order dated 17.1.06 passed by learned Court below whereby the petitioners application filed under Section 39 of the C.P.C seeking transfer of the decree from the Court of Sub -Judge, Chaibasa to the Court of learned District Judge, Alipore South, 24 Parganas (West Bengal), has been rejected on the ground that the application under Section 39 C.P.C is prematured and incomplete. The learned Court below is of the view that since no execution petition has been filed in the Court as yet and nothing has been stated about any property of the defendant situated within the State of Jharkhand, there is no occasion for the petition under Section 39 C.P.C.

(2.) MR . B.L. Jain, learned Sr. counsel appearing on behalf of the petitioner, submitted that the order of learned Court below is contrary to the provisions of Section 39 of the C.P.C. The petitioner filed an application under the provisions of Section 39 C.P.C for transfer of the decree for execution to the Court at Alipore as the judgment debtor has no immovable/movable property within the jurisdiction of the Court of learned Sub -Judge at Chaibasa out of which the decree can be satisfied. The respondent has their Head office and Bank Account at Calcutta within the jurisdiction of learned District Judge, Alipore and as such, the decree can be effectively executed and satisfied, if the same is transferred to that Court. He submitted that the Court below has misconstrued the provisions of Section 39 C.P.C in observing that pendency of an application for execution is the condition precedent for passing an order of transfer of decree under Section 39 of the C.P.C. Learned Counsel submitted that the provision simply provides for transfer of the decree and not the execution case and as such no application for execution is required to be filed before making an application under Section 39 C.P.C for transfer of the decree for execution to any other Court. Learned Counsel drew attention of the Court on the provisions of Sections 40 and 42 of the Civil Procedure Code and submitted that none of the said provisions contemplates pendency of an application for execution in the Court before making an application under Section 39 of the C.P.C.

(3.) IN order to appreciate rival contentions of the parties it is necessary to see the relevant provisions of law. Section 39 of the C.P.C provides for transfer of the decree which runs as follows: 39. Transfer of decree - (1) The Court which passed a decree may, on the application of the decree -holder, send it for execution to another Court of competent jurisdiction. (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) If such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) if the decree directs the safe or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or (d) If the Court which passed the decree considers for any other reason, which it shall record In writing, that the decree should be executed by such other Court. (2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent Jurisdiction. (3) For the purposes of this Section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. (4) Nothing in this Section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction. Order XXI Rule 5 provides for mode of transfer and Rule 6 of the said Order provides for procedure where the Court desires that its own decree be executed by another Court. The said Rules run as thus: