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Judgment
COS no. 93/94 culminated in passing the decree for the recovery of Rs. 43,53,84200 along with future interest (c) 9% p.a till its realization in
favour of the petitioner (decree holder) vide judgment dated 31st of February 2002.
Application for Execution presented on 23rd of September 2005 has been transferred by the Registrar Judicial to the Court of Principal District
Judge, Jammu.
A composite motion is made for withdrawal of the Execution Petition pending on the file of Learned Principal District Judge, Jammu and its
transfer thereof to the Hon'ble High Court of Judicature at Bombay as the judgment debtors are residing at Bombay.
Appearing counsel for the petitioner (decree holder) would contend that in terms of Section 39 and Section 44 of J&K Code of Civil Procedure
read with Section 43 of the Central Code of Civil Procedure, decree may be sent to the Hon'ble High Court of Judicature at Bombay for its
execution by itself or by transferring the same to any other Subordinate Court of competent jurisdiction.
Considered. Section 39 of Civil Procedure Code (J&K) provides for transfer of the decree for its execution to any other Court of competent
jurisdiction where the judgment debtor voluntarily resides or carries on business or personal works for gain, within the local limits of the jurisdiction
of the such other Court, or property of the decree holder is situated within the jurisdiction of that Court. Section 44 provides for Execution of
Decrees passed by the Courts in other States in India. Said section reads as under:
Section 44 CPC (J&K);
Execution of decrees passed by Courts in other States in India. The Government may, by notification in the Government Gazette, declare that
decrees of any Civil or Revenue Court situated in India beyond the limits of the Jammu and Kashmir State or of any Court established or continued
by the authority of the Central Government of India outside India or any class of such decrees may be executed in the State as if they had been
passed by Courts of the State"".
What emerges from above is that a decree passed by the Civil or Revenue Court situated in India beyond the limits of Jammu and Kashmir
State can be executed in the State as if same has been passed by the Court of the State. Code does not provide for execution of the decrees
passed by the Courts in the State of Jammu and Kashmir by the Courts located outside the State of Jammu and Kashmir to which the Code of
Civil Procedure (J&K) will not apply. On the other hand Section 44 of Code of Civil Procedure (Central) takes care of such situation, which reads
as under:
Section 44 CPC (Central)
The State Government may, by notification in the Official Gazette, declare that the decrees of any revenue court in any part of India to which
the provision of this Code do not extend, or any class of decrees, may be executed in the States as if they had been passed by courts in that
State.
Bare reading of his Section provides that decrees passed by the Courts in any part of India to which provision of this Code do not extend can
be executed in the State as if they have been passed by the Courts in that State.
What emerges from above is that the decree passed by this Court on original side can be executed by the Courts at Bombay. Both Section 44
of the State Code as well as the Section 44 of Central Code apply subject to issuance of notification by the Government.
Way back in the year 1955, a question arose for consideration as to whether decree passed by the Court at Amritsar is executable in the State.
The matter has been settled by the Full Bench of this Court in the Judgment reported in AIR 1955, J&K PAGE 5 wherein the scope of Section 44
of the State Code has been discussed and in the light of the notification issued as required under Section 44, it has been held as under:
Decrees of any Civil Court situated in India beyond limits of J&K State or in any Court established or continued by Authority of the Central
Government outside India may, if they cannot be executed within the jurisdiction of the Court by which they were passed, be executed in the State
as if they had been passed by the Courts of the State.
While settling this position, it has also been observed in the same judgment that:
It may as well be noted here that the decrees passed by our Courts are similarly executable in other States of India although the Indian Code of
Civil Procedure does not extend to this State, the provisions of Code have certainly been so amended by the Central Legislature as to provide for
execution in other States of India of decrees passed by our Courts as if these had been passed by the Courts in those States.
Since execution of the decree is considerably delayed as the parties reside in Bombay have not been responding to the process of execution
initiated by the learned Principal District Judge, Jammu, it is that situation which has prompted the petitioner (decree holder) to file the instant
composite motion which is allowable in the backdrop of the position stated above.
This motion is allowed. Application for Execution as transferred to the Court of Learned Principal District Judge, Jammu is withdrawn and
while invoking the powers under Section 39 of the State Code read with Section 43 of the Central Code, same be sent for its execution to the
Hon'ble High Court of Judicature at Bombay by itself or by transferring the same to any other subordinate Court of competent jurisdiction.
Registry to ensure sending of the Execution papers to the Hon'ble High Court of Judicature at Bombay. Motion accordingly disposed off.