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Judgment
R. M. Doshit, J.—This Revision Application u/s 115 C.P.C. has been preferred by the judgment-debtor against the order dated 13th
September, 2001 made by the learned Civil Judge (S.D.), Vadodara on Non-Judicial Misc. Civil Application No. 10 of 2001 and against the
order dated 1st October, 2001 made by the learned Civil Judge (S.D.), Rajkot in Special Execution Application No. 154 of 2001.
The petitioner herein had instituted Special Civil Suit No. 303 of 2000 in the Court of Civil Judge (S.D.), Vadodara against the respondents-
defendants for recovery of a sum of Rs. 7,21,18,013-00 and for other reliefs. The said dispute was settled out of the Court and a decree was
passed on 11th September, 2000 in terms of the consent terms. Pursuant to the said consent decree, the defendants (claiming to be the judgment-
creditors under the consent decree) moved above-referred Non-Judicial Misc. Application No. 10 of 2001 u/s 39 C.P.C. for transfer of decree to
the Civil Court at Rajkot. According to the judgment-creditors the judgment-debtor (the plaintiff) has properties situated at Rajkot which could
satisfy the decree. Under the impugned order dated 13th September, 2001 the said application is allowed and the decree is ordered to be
transferred to the Civil Court (S.D.), Rajkot. On such transfer being made, the judgment-creditors moved above-referred Special Darkhast No.
154 of 2001. In the said Darkhast, on 1st October, 2001 under Application Exh. 7, the judgment-debtor applied for adjournment. The same was
granted in the following terms :-
Time is hereby granted subject to maintaining prevailing position to safeguard the interest of the J. C. In the meantime, kept on 4-10-2001 as
agreed.
On the said order having been made the judgment-debtor moved Application Exh. 8 for an adjournment for 20 days with a view to challenging
the above order dated 1st October, 2001. On the said Application, the Court made order as under :
Heard. Read the objections. The time is conditionally granted as per the convenience of the learned Advocate for the J. D. who is sick and that
too after hearing his legal representatives. Just to avoid further complications and in the larger interests of justice the interim order is passed. Hence,
it is hereby rejected.
Feeling aggrieved, the judgment-debtor has preferred the present Revision Application.
Mr. Tanna has strenuously urged that the suit was instituted by the petitioners for recovery of more than Rs. 7 crores from the defendants.
Under the consent decree, the petitioner had agreed to pay certain amounts to the defendants provided the defendants carry out the rest of the
terms of the consent decree. The defendants have failed to carry out the terms of the said consent decree. The petitioners, therefore, are under no
obligation to pay any amount to the defendants pursuant to the said consent decree. No execution application, therefore, could be maintainable
against the petitioner.
I am of the opinion that the maintainability of the execution application or the construction/interpretation of the consent terms is not the matter at
issue in the present Revision Application. The contentions raised in that behalf are besides the point. I, therefore, do not deal with the same.
Mr. Tanna has submitted that the petitioner has number of properties at Vadodara. There was no need for transfer of decree as envisaged u/s
39 C.P.C. Further if at all, such transfer was required, the petitioner ought to have been given notice of the same and an opportunity of being
heard. Had the petitioner been given such opportunity the petitioner could have pointed out the number of properties situated at Vadodara which
the petitioner owns. Mr. Tanna has also submitted that on account of the status quo ordered by the learned Civil Judge (S.D.), Rajkot all the
construction activities taken up by the petitioner at Rajkot have come to a standstill. The petitioner is unable to carry out the development work in
respect of the properties in question undertaken by it. In support of his contention, Mr. Tanna has relied upon the judgment in the matter of
Saralabala Devi Vs. Shyam Prosad Chatterjee and Others, .
The learned Advocate Mr. Shah has contested the Revision Application. He has submitted that a composite revision application against the
orders made by two different Courts is not maintainable. He has relied upon Section 39 C.P.C. and has submitted that in the event the judgment-
creditor establishes existence of any of the three contingencies mentioned therein, the judgment-creditor would be entitled for transfer of a decree.
In the submission of Mr. Shah admittedly the judgment-debtor carries on business at Rajkot. The judgment-creditors, therefore, can legitimately
seek transfer of decree to a Court of competent jurisdiction at Rajkot. In the circumstances, the fact that the judgment-debtor has sufficient
property at Vadodara, i.e. within the jurisdiction of the Court that passed the decree pales into insignificance. Mr. Shah has also relied upon Rule
291 of the Civil Manual. He has submitted that as provided in Rule 291 of the Civil Manual, applications u/s 39 to transfer a decree to another
Court for execution does not require a judicial inquiry. The Court is, therefore, not obliged to issue notice upon the judgment-creditor nor it is
obliged to give an opportunity of hearing to the judgment-debtor.
In support of his contentions Mr. Shah has relied upon the judgments in the matters of Nehar Ganguli and Others Vs. Rai Anath Nath Basu and
Others, of Narain Das Dutt and Another Vs. Banku Behari Chattopadhaya and Others, of Shiyali Vengu Chetti v. Valjee Kanjee & Co., Madras
AIR 1936 Mad. 99; of AIR 1927 73 (Privy Council) of Banaras Bank Ltd., (In Liquidation) Vs. Jyoti Bhushan Gupta and Another, of Devi Das
v. Mohamed Akbar Khan & Ors. AIR 1935 Lahore 508; of In re : Janki Prasad Poddar Assignee of the decree. In Re: Janki Prasad Poddar and
Baijnath Ramchander, and of Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, .
Next, Mr. Shah has contended that in any view of the matter the powers of Revision u/s 115 C.P.C. are discretionary powers. Such powers
may not be exercised against the orders where the substantial justice has been done. In support thereof, he has relied upon the judgments in the
matters of Chunilal Maijibhai Vs. Shankerbhai Harjibhai and Another, of Patel Jayantilal Sendhidas Vs. Ambalal Maganlal Kothari, and of Dena
Bank, Surat Vs. Devi Exhibitors, Surat and Others, .
In the matter of Smt. Saralabala Devi (supra), in an appeal arising from the execution proceedings, the judgment-creditor raised objections
against the order of transmission of decree made on an application made by the judgment-creditor without issuing notice to the judgment-debtor.
The learned Judges of the Calcutta High Court observed that ""...I have already pointed out that the order for transfer was made ex pane without
service of any notice on the judgment-debtors. The order for transfer of a decree is not a ministerial act, but is a judicial act and like all judicial acts
it did not acquire finality as no notice was served on the parties affected thereby... The ex pane order for transfer cannot, therefore, be binding on
the judgment-debtors"".
In the matter of Nehar Ganguli & Ors. (supra), in an appeal arising from an order of transfer of decree, the Patna High Court held that
...There is no warrant in law for hearing the judgment-debtors before transferring the decree to another Court for execution. Section 39 has been
enacted entirely for the benefit of the decree-holder to facilitate speedier and fuller satisfaction of the decree. Subject to any contract, or directions
of a Court of law, it is for the decree-holder to decide the venue of the execution and the judgment-debtor cannot legitimately impose any limitation
or restriction upon the power of the decree-holder to obtain satisfaction of the decree in the manner provided by Sections. 38 and 39. It is for this
reason that none of these Sections provides for hearing the judgment-debtor before transferring the decree for execution to another Court. The
transfer of a decree is a quasi-administrative order and may be passed ex parte without notice to the judgment-debtors."" Similarly, in the matter of
Narain Das Dutt & Anr. (supra), the Hon''ble Court, with respect to the application for transmission of decree, observed that ""...No notice of this
application was given to the widow or the appellants, nor does the law require that in such cases such notice should be given."" Similar is the view
expressed by various High Courts, the Hon''ble Supreme Court and the Privy Council in the above-referred judgments relied upon by Mr. Shah.
In substance, all the said Courts have uniformly held that, ""...The act of transmitting a decree for execution is a ministerial act. Such an order can be
passed even ex parte.
In the matter of Chunilal Maijibhai (supra), this Court has observed that ""...Even if his plea is legally sound, this Court is not bound to exercise
its revisional jurisdiction, which is discretionary in its character from the very nature of things"". Similar is the view expressed in the matters of Patel
Jayantilal Sendhidas (supra) and Dena Bank (supra).
As to the scope of interference in exercise of revisional jurisdiction u/s 115 C.P.C., there cannot be any dispute and there is none. It is also not
disputed that the powers of revision u/s 115 C.P.C. are discretionary powers and the Court may, in the interest of justice, refuse to exercise the
said powers.
Whether the petitioner ought to have been given notice or an opportunity of hearing, is the question to be considered. The judgment in the
matter of Smt. Saralabala Devi (supra) shall not lend support to the petitioner. In the said matter, the learned Judge of the Calcutta High Court
found that the order of transmission of decree was obtained by the judgment-creditor by stating misleading facts and by misrepresentation.
In view of all the above-referred judgments, I have no reason to take any other view but the view that transmission of a decree to another
Court of competent jurisdiction for execution is a ministerial act and can be made ex pane. Hence, the challenge to the order dated 13th
September, 2001 on the ground that no notice was given to the judgment-debtor should necessarily tail.
Section 39 C.P.C. deals with transfer of decree for execution to another Court of competent jurisdiction on application of the decree holder.
Sub-section (1) thereof provides for four conditions, on satisfaction of any of which, the Court would be justified in making the order of transfer.
Sub-clause (a) thereof provides, inter alia, that the person against whom the decree is passed actually and voluntarily carries on business or
personally works for gain within the local limits of jurisdiction of such other Court. In the present case, indisputably, the petitioner, judgment-
debtor, carries on business at Rajkot. The Court at Vadodara, therefore, was justified in making the impugned order of transfer. The fact that the
judgment-debtor has the property at Vadodara (within the jurisdiction of the Court which passed the decree) and that such property is sufficient to
satisfy the decree, is irrelevant.
In above view of the matter, the challenge to the impugned order dated 13th September, 2001 is rejected.
As to the orders dated 1st October, 2001 made by the learned Civil Judge (S.D.), Rajkot below Applications Exhs. 7 and 8, I am of the view
that the learned Judge made the order to maintain status quo below Application Exh. 7 with a view to accommodating the learned Advocate who
was reported sick. It was a mere ad-interim arrangement made in the interest of justice. The order made below Application Exh. 8 is a
discretionary order. No Advocate or a litigant can claim adjournment as a matter of right. Such orders need not be interfered with in a revision
application preferred u/s 115 C.P.C.
For the aforesaid reasons, the Civil Revision Application is dismissed with costs. Rule is discharged. Ad-interim relief is vacated.
The learned Advocate Mr. D. J. Bhatt requests that the stay operating pending this Revision Application against the execution proceedings be
continued for a period of six weeks to facilitate the petitioner herein to approach the Hon''ble Supreme Court.
The request is granted. The stay of the impugned execution proceedings shall continue to operate till 20th October, 2003 on condition that the
petitioner judgment-debtor shall maintain status quo with respect to the properties mentioned in the Execution Application.