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Judgment
Name of the
firm","Name of
Partners",Petition No.,"Date of
execution of
partnership
deed","Place of
execution &
registration of
partnership
deed
Bari Brahmana
Rice Mill","Sh. Om Parkash
Sh. Tilak Raj
Late Sh. Balwant
Singh
(predecessor-in-
interest of
Prabdev Singh,
Deepak Singh
and Parkasho
Devi) Sh. Baldev
Sharma","Petitioners in
Petition No:
33/2012
Petitioners in
Petition No:
35/2012
Respondent No.
1",27.06.1983,"Sub Registrar
Mufassil, Jammu
Bari Brahmana
Salt","Sh. Om Parkash
Sh. Tilak Raj
Late Sh. Balwant
Singh
predecessor-in-
interest of
Prabdev Singh,
Deepak Singh
and Parkasho
Devi) Sh. Baldev
Sharma","Petitioners in
Petition No:
33/2012
Petitioners in
Petition No:
35/2012
Respondent No.
1",27.06.1983,"Sub Registrar
Mufassil, Jammu
Sharman Rice
Mills","Sh. Om Parkash
Sh. Tilak Raj
Prabdev Singh
Sh. Baldev
Sharma","Petitioners No.1
& 2 in Petition
No: 33/2012
Petitioner No. 1
in Petition No:
35/2012
Respondent
No.1",15.05.1986,"Sub Registrar
Samba
Judge, Jammu vide his order dated 06.05.2011 by directing one month’s time to the respondents to fulfil and act upon the terms of the Award.",,,,
The application for transfer of the execution application to the court of learned District Judge Samba was subsequently filed by the petitioners in,,,,
OWP No. 35/2012 and the same has been dismissed by the learned District Judge Jammu vide order dated 17.10.2012.,,,,
In both the petitions filed under Section 104 of the Constitution of Jammu and Kashmir, petitioners are aggrieved of order dated 17.10.2012",,,,
whereby the application filed by the petitioners in OWP No. 35/2012 has been dismissed. Admittedly, petitioners in OWP 33/2012 had not filed",,,,
any application for transfer of the Execution Application to the Court of learned District Judge, Samba.",,,,
The main grounds taken by the petitioners are that after the creation of Samba district in the year 2006, files pertaining to Samba district were",,,,
transferred to the Courts at Samba and since the petitioners are residents of Samba, partnership property is situated in District Samba, as such, the",,,,
Court at Samba shall have the jurisdiction to deal with the execution application after the creation of district Samba as the area Bari Brahmana now,,,,
falls within the jurisdiction of district Samba. It is the contention of the petitioners that for the purpose of execution of the award, the Transfer",,,,
Deeds are required to be entered between the parties and the procedure for execution of such decree is prescribed under Order 21, Rule 34 and",,,,
since the deeds pertain to the immovable property, as such, they are required to be registered as per Section 17 of the Registration Act by the Sub",,,,
Registrar/Registrar under whose jurisdiction the property is situated. The petitioners have placed reliance upon Section 38, Section 39, Section 46",,,,
and Order 21, Rule 49 of the Code of Civil Procedure.",,,,
On the part of the Respondent No. 1-Baldev Sharma in both the petitions, it is contended that since there were three partnership businesses",,,,
being conducted under three different partnership firms, out of which, the partnership deeds pertaining to Bari Brahmana Rice Mill and Bari",,,,
Brahmana. Salt have been executed in Jammu and registered before the Sub Registrar Jammu as well, agreement to refer the disputes to the",,,,
Arbitrator was entered between the parties at Jammu, arbitration proceedings took place in Jammu and the arbitration award was passed in",,,,
Jammu, as such, the Court in Jammu has the jurisdiction to deal with the execution application. It is further mentioned by the respondent No. 1-",,,,
Baldev Sharma that otherwise also as per the award, the partnership firms have not been dissolved but different firms have been given to different",,,,
partners, meaning thereby there is only re-allocation of shares of the partners and the share of the partners in partnership businesses is a movable",,,,
property. It is the specific case of Respondent No. 1 that as per the award, the composition of the partners had to change without dissolving the",,,,
partnership business and in terms of the award, the partnership business of M/s Sharman Rice Mills along with all its assets, plant and machinery,",,,,
building, name, goodwill, rights and connections has to vest with the Respondent No. 1-Baldev Sharma, Late Sh. Balwant Singh and Sh. Prabhdev",,,,
Singh, meaning thereby that Om Parkash and Tilak Raj be no more partners in M/s Sharman Rice Mills and similarly in other two firms also",,,,
composition of the partners will change. The award as per the counsel for the Respondent No. 1 is not only with respect to the change of the,,,,
partners in different partnership firms but it is also for recovery of money. The learned counsel for the Respondent No. 1 has relied upon Section,,,,
37 and Section 21(3) of the Code of Civil Procedure.,,,,
Now coming to the arguments of learned counsel for the petitioners it is relevant to note that in terms of Section 39 of the Code of Civil,,,,
Procedure, the Court which passes a decree may, on the application of decree holder send it for execution to another court of competent",,,,
jurisdiction. Section 38 and Section 39 of the Code of Civil Procedure are reproduced here under:,,,,
Court by which decree may be executed:,,,,
A decree may be executed cither by the Court which passed it, or by the Court to which it is sent for execution.",,,,
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 reside 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 sale 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 he 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.",,,,
It is the contention of the learned counsel for the petitioners that since necessary deeds are required to be registered for the purpose of,,,,
execution of the award as prescribed under Order 21, Rule 34 and such documents can only be registered by the courts at Samba, as such, the",,,,
executing court should have transferred the execution application under Section 39 of the Code of Civil Procedure. The perusal of Section 39 of,,,,
the Code of Civil Procedure will show that same covers the cases where the court which has passed the decree is approached by decree-bolder,,,,
for the transfer of the same to another court of competent jurisdiction and such court may transfer the decree if the conditions contained in Section,,,,
39 of the Code of Civil Procedure are satisfied. Section 39 of the Code of Civil Procedure is not at ail applicable in the present case as the present,,,,
case pertains to the execution of award and the execution application has been filled by the Respondent No. 1. In the present case, it is the",,,,
Respondent No. 1, who is a decree-holder and he has not filed any application for the transfer of the decree. Otherwise also, it is not obligatory",,,,
for the Court, which has passed the decree to mandatorily transfer the same on an application but the court has the discretion to do so for the",,,,
eventualities mentioned in the Section. As such, the contention of the petitioners that in view of Section 38 and Section 39 of the Code of Civil",,,,
Procedure, the decree was required to be transferred without any merit as the award can be executed by the District Judge, Jammu as prescribed",,,,
by Order 21, Rule 34 .",,,,
It is the further contention of the petitioners in OWP No. 35/2012 that in terms of Order 21, Rule 49 , the property in question cannot be",,,,
attached or sold in execution of a decree. Although this plea has not been taken in the petition but still a perusal of Order 21, Rule 49 will show",,,,
that the present case is not covered by Order 2.1 Rule 49, inasmuch as this is a case where award has been passed inter-se between the partners",,,,
with respect to the different partnership businesses being carried out by them. It will only cover such cases where party has obtained a decree,,,,
against a partner in a partnership firm. Reliance as such on Order 21, Rule 49 is also misplaced.",,,,
On the other hand, the District Court will otherwise also have the power to execute the decree keeping in view the fact that award, for which,",,,,
the execution is being made, is not of immovable property. Admittedly in the present case in three partnership business being carried on under",,,,
three partnership deeds, there is re-allocation of shares of the partners. In one partnership deed i.e., M/s Sharman Rice Mill only Baldev Sharma",,,,
and Prabhdev Singh and the legal heirs of Late Sh. Balwant Singh will have the share, whereas another partnership business, i.e., Bari Brahmana",,,,
Rice Mill and Bari Brahmana Salt., only Om Parkash and Tilak Raj will have share, as such, there is no dissolution of the partnership deeds but it is",,,,
only re-allocation of the partnership shares. Apart from the aforesaid award there is an award pertaining to the recovery of money. Hon’ble,,,,
Supreme Court has already held that share of partner in partnership business is a movable property. The learned counsel for the Respondent No. 1,,,,
has relied upon the judgments passed by the Apex Court in case titled Commissioner of Income Tax West Bengal Calcutta v. Juggi Lal,,,,
Kamlapat AIR 1967 SC 401, Rattan Lal Sharma v. Parshotam Harit 1974 Vol. (1) SCC 671 and Addanki Narayanaappa & Anr. v.",,,,
Bhaskra Krishnaappa AIR 1966 SC 1300. In the aforesaid judgments, Hon’ble Apex Court has already settled that share of a partner in",,,,
the assets of partnership, which has also immovable properties, is movable property.",,,,
Otherwise also admittedly out of the three, two partnership deeds under which the business was being carried on by the parties to the litigation",,,,
were executed and registered at Jammu, agreement to refer the disputes to the arbitration was executed by the parties in Jammu, arbitration",,,,
proceedings were conducted in Jammu and the award was also passed in Jammu. The parties earlier filed execution application for the execution,,,,
of the award before the learned District Judge Jammu and as such, cause of action having accrued in Jammu with respect to the movable property,",,,,
the District Judge Jammu otherwise also has the jurisdiction to deal with the execution application. The present petitions as such are liable to be,,,,
dismissed on the aforesaid reasoning only. Moreover, in view of Section 21(3) and Section 37 of the Code of Civil Procedure, the execution",,,,
proceedings can continue before the District Judge, Jammu. Section 21(3) provides as under:-",,,,
21(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any",,,,
Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been",,,,
a consequent failure of justice.""",,,,
In the present case, admittedly the District Samba was carved out in the year 2006 and as per the learned counsel for the petitioners, cases",,,,
were transferred to the Samba Courts somewhere in the year 2007 but the present petitioners before this court objected to the jurisdiction in the,,,,
year 2012, meaning thereby they did not take the objections to the jurisdiction of the Jammu Court at the earliest possible opportunity and there is",,,,
no consequent failure of justice either, as such, the order passed by the court below does not suffer from any error of jurisdiction. Section 37 of the",,,,
Code of Civil Procedure makes the things further clear as the explanation to the said Section reads as under:,,,,
Explanation to Section 37:,,,,
[Explanation.-The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of,,,,
the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the",,,,
jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making",,,,
the application for execution of the decree it would have jurisdiction to try the said suit.],,,,
In view of the fact that when the application for execution was filed, the Court at Jammu had the jurisdiction, as such, it will continue to have",,,,
the jurisdiction. The present petitions as such are without any merit. Otherwise also, while exercising jurisdiction under Section 104 of the",,,,
Constitution of J&K, this Court does not act as a court of appeal nor it exercises revisional jurisdiction. The parameters for exercise of power",,,,
under Section 104 of the Constitution of Jammu and Kashmir are not the same as for exercising revisional or appellate jurisdiction. As has been,,,,
held by the Apex Court in case reported in 2010 Vol. 9 SCC 385 that the correctional jurisdiction cannot be exercised like a bull in a China Shop,,,,
to correct all errors of judgment of a court or acting within limits of its jurisdiction. Correctional jurisdiction can be exercised where orders have,,,,
been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. It is settled position of law that supervisory,,,,
jurisdictions required to be exercised sparingly in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of,,,,
law.,,,,
From the facts stated herein above, it is, clear that the District Judge, Jammu while passing the order impugned in the present petitions has not",,,,
exceeded the jurisdiction and the order does not suffer from any jurisdictional error. Accordingly, present petitions are found without any merit and",,,,
are dismissed as such. Interim order, if any, shall stand vacated. Registry to send down the record of the trial Court.",,,,