Case Note & Summary
The petitioner, Penguin Alcohols Pvt. Ltd., a decree-holder, filed Special Civil Suit No.63/2009 in the Court of Civil Judge, Senior Division, Margao against the respondents for recovery of money. The trial court decreed the suit on 10/7/2008, directing the respondents to pay Rs.11,42,296/- with interest at 18% per annum. On 9/4/2009, the petitioner filed an application under Sections 39 and 40 read with Order 21 Rules 5 and 6 of the Code of Civil Procedure, 1908, seeking transfer of the decree to the District Judge, Nellore, Andhra Pradesh, for execution against respondent no.1, who resides and carries on business in Nellore and has property there. The Executing Court dismissed the application solely on the ground that the address of the defendant in the suit was shown to be in Nellore District, Andhra Pradesh. The petitioner challenged this order under Article 227 of the Constitution. The High Court held that under Sections 39 and 40 CPC, the Executing Court is bound to transfer the decree when the judgment-debtor resides or has property within the jurisdiction of another court. The reason given by the Executing Court was patently unsustainable in law. The court allowed the petition, quashed the impugned order, and directed the Executing Court to transfer the decree to the District and Sessions Judge, Nellore, for execution.
Headnote
A) Civil Procedure Code - Transfer of Decree for Execution - Sections 39 and 40, Order 21 Rules 5 and 6, Code of Civil Procedure, 1908 - Mandatory Transfer - The Executing Court is bound to transfer a decree to another court when the judgment-debtor resides or carries on business, or has property, within the local limits of that court's jurisdiction. The court cannot refuse transfer merely because the defendant's address in the suit is within the jurisdiction of the transferee court. Held that the impugned order dismissing the application was patently unsustainable in law (Paras 2-5).
Issue of Consideration
Whether the Executing Court was justified in dismissing the application for transfer of decree under Sections 39 and 40 CPC solely on the ground that the address of the defendant in the suit was shown to be in Nellore, Andhra Pradesh, despite the decree-holder seeking transfer to that very court for execution.
Final Decision
The High Court allowed the petition, quashed the impugned order dated 30/7/2009, and directed the Executing Court to transfer the decree to the District and Sessions Judge, Nellore, for execution.
Law Points
- Transfer of decree for execution is mandatory under Sections 39 and 40 CPC when judgment-debtor resides or has property within jurisdiction of another court
- Executing Court cannot refuse transfer on ground that address of defendant in suit is within its own jurisdiction
Case Details
2010 LawText (BOM) (11) 66
Writ Petition No.650 of 2009
Mr. D. Pangam for petitioner
Penguin Alcohols Pvt. Ltd.
Dr. K. Subbaramaiah, Proprietor of M/s. The White Horse Distilleries, and M/s. Andhra Pradesh Beverages Corporation Limited
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Nature of Litigation
Writ petition under Article 227 of the Constitution challenging order dismissing application for transfer of decree for execution.
Remedy Sought
Petitioner sought quashing of the impugned order dated 30/7/2009 and direction to transfer the decree to the District and Sessions Judge, Nellore, for execution.
Filing Reason
The Executing Court dismissed the application for transfer of decree solely on the ground that the defendant's address in the suit was shown to be in Nellore, Andhra Pradesh.
Previous Decisions
The trial court decreed Special Civil Suit No.63/2009 on 10/7/2008 in favor of the petitioner. The Executing Court dismissed the transfer application on 30/7/2009.
Issues
Whether the Executing Court was justified in dismissing the application for transfer of decree under Sections 39 and 40 CPC solely on the ground that the address of the defendant in the suit was shown to be in Nellore, Andhra Pradesh.
Submissions/Arguments
Petitioner argued that under Sections 39 and 40 CPC, the Executing Court was bound to transfer the decree to the District and Sessions Court, Nellore, since the judgment-debtor resides within its jurisdiction and has property there. The reason given by the Executing Court was patently unsustainable in law.
Ratio Decidendi
Under Sections 39 and 40 of the Code of Civil Procedure, 1908, the Executing Court is bound to transfer a decree to another court when the judgment-debtor resides or carries on business, or has property, within the local limits of that court's jurisdiction. The court cannot refuse transfer merely because the defendant's address in the suit is within the jurisdiction of the transferee court.
Judgment Excerpts
By this petition under Article 227 of the Constitution of India the petitioner challenges order dated 30/7/2009 passed by the II-Additional Civil Judge, Senior Division, Margao, in C.M.A No.5/09/II in Special Civil Suit No.63 of 2009, by which application filed by the petitioner under Sections 39 and 40 r/w Rules 5 and 6 of Order 21 of the Civil Procedure Code, 1908 has been dismissed.
The Executing Court by the impugned order has dismissed the application solely on the ground that the address of defendant in the suit was shown to be in Nellore, District in State of Andhra Pradesh.
Mr. Pangam further submitted that in terms of Sections 39 and 40 of C.P.C. the Executing Court was bound to transfer the decree to the District and Sessions Court, Nellore since the judgment-debtor resides within the jurisdiction of the said Court as well as his property is within the local limits of the jurisdiction of that Court.
Procedural History
The petitioner filed Special Civil Suit No.63/2009 in the Court of Civil Judge, Senior Division, Margao, which was decreed on 10/7/2008. On 9/4/2009, the petitioner filed an application under Sections 39 and 40 read with Order 21 Rules 5 and 6 CPC for transfer of the decree to the District Judge, Nellore. The Executing Court dismissed the application on 30/7/2009. The petitioner then filed Writ Petition No.650 of 2009 under Article 227 of the Constitution before the High Court of Bombay at Goa.
Acts & Sections
- Code of Civil Procedure, 1908: Sections 39, 40, Order 21 Rules 5, 6
- Constitution of India: Article 227
