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Case Number

G.A No. 3469 of 2011,E.C No. 390 of 2011

Attorney(S)

For the Petitioner: Mr. Samit Talukdar, Senior Advocate with Ms. Hasnahana Chakraborty, Advocate
Mr. Amitesh Banerjee, Advocate with Mr. Kausik Mondal, Mr. Rudrajit Sarkar, Ms. Somali Bose, Advocates
Mr. Chayan Gupta, Advocate with Mr. M.M Chandra, Advocate
Mr. D.N Sharma, Advocate with Mr. Shailendra Jain, Mr. Nilay Sengupta, Advocates
Mr. Shyamal Sarkar, Advocate with Mr. Rajesh Gupta, Mr. Bijon Dutta, Advocates
Mr. Surajit Nath Mitra, Senior Advocate With Mr. Bidyut Dutta, Advocate
For Judgment debtor Nos. 2(a) to 2(d): Mr. Ratnanko Banerjee, Advocate with Mr. Satarup Banerjee, Mr. Sanjay Jhunjhunwala, Advocates
For Proforma Respondent/Decree-holder Nos. 16(a), 16(b) & 16(c): Ms. Puja Das Adhikari, Advocate with Mr. Saroj Tulsian, Advocate

Judges

I.P Mukerji, J.

Acts

Order XIII Rules 5 and 6 of the Supreme Court Rules 1966 together with Rule 15 of the Code of Civil Procedure, 1908,
XIII Rules 5 and 9 of the Supreme Court Rules 1966 and Order XLV Rule 15 of the Civil Procedure Code,
XLV Rule 15 and Rules 5 and 6 of Order XIII of the Supreme Court Rules 1966
section 38 read with section 47 of the Code of Civil
XIII rules 5 and 6 of the Supreme Court Rules, 1966,
section 39 of the Code of Civil Procedure
SECTION 39 CIVIL PROCEDURE CODE
45 rule 15 of the Civil Procedure Code
sub rule 1 of Rule 15 of Order XLV
Order XXI Rule 10 of the Code.
sub Rule 2 of Rule 54.
Order XLV Rule 15
Order XXI Rule 54.
Order 21 Rule 11,
sub rule 3
sub rule 1,
sub rule 2

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Smart Summary

Judgment Summary — I.P. Mukerji, J.

Factual and Procedural Background

The dispute arose from an agreement dated 28 June 1975 between two families (the Guptas and the Sharmas) that contained an arbitration clause. An arbitrator made an award on 29 June 1996. Some members of the Gupta family challenged the award. On 5 June 1978 the award was set aside by this Court; on 1 August 1997 that order was affirmed by a division bench. The matter proceeded to the Supreme Court by special leave petitions converted into civil appeals, and on 1 September 2003 the Supreme Court set aside this Court's judgment and order and upheld the arbitrator's award. The Supreme Court observed that appropriate proceedings could be initiated before the executing court and directed that the award was the rule of the Court.

On 28 September 2011 Smt. Madhavi Ahluwalia filed an execution application (E.C. 390 of 2011) in this Court seeking, among other reliefs, appointment of a receiver to take possession of properties listed in schedule I and reconvey properties listed in schedule II, collection of rents and profits for schedule VI properties, and injunctions preventing the judgment debtors from dealing with various properties and annexures. Most of the properties were outside this Court's territorial jurisdiction; two minor properties were within jurisdiction.

By an ex parte order dated 1 November 2011 the Court appointed joint special officers to inventory properties in schedules I and VI and granted an injunction restraining the respondents from dealing with those properties. On 5 December 2011 certain respondents (described as decree-holders / respondent nos. 2(a)–(d)) applied for dismissal of the execution application contending, inter alia, lack of competence and territorial jurisdiction of this Court.

Legal Issues Presented

Whether an execution application based on a Supreme Court decree is competent in this Court when the original decree has not been transmitted by the Supreme Court to this Court's registry (Order XIII Rules 5 & 6, Supreme Court Rules 1966, and Order XLV Rule 15 CPC).
Whether this Court could pass orders of attachment (including injunctions and appointment of special officers/receivers) in respect of immovable properties situated outside its territorial jurisdiction (Section 39 and Section 41 CPC, Order XXI Rule 54 CPC, and relevant case law).
What procedural consequences should follow where interim protective measures have been ordered in the execution proceedings prior to transmission/receipt of the original decree.

Arguments of the Parties

Respondents opposing execution (respondent nos. 2(a)–(d) and supporting parties)

Primary contention: this Court had no competence to proceed with execution because the original decree passed by the Supreme Court on 1 September 2003 had not been transmitted to this Court by the Supreme Court Registrar as required by Order XIII Rules 5 and 6 of the Supreme Court Rules, 1966; therefore the execution application was incompetent.
Territorial objection: nearly all properties subject to execution were situated outside this Court's jurisdiction (Guntur, Karnataka; Alwar, Rajasthan; Kanpur, Uttar Pradesh; Siliguri, West Bengal). Under Section 39 CPC this Court lacked jurisdiction to execute the decree over those properties.
Counsel for resisting parties included Mr. Shamyal Sarkar (supporting second respondent group) and Mr. Surajit Nath Mitra, Senior Advocate, who emphasized transmission of the original decree as fundamental.

Applicant for execution (Smt. Madhavi Ahluwalia) — represented by Mr. Samit Talukdar, Senior Advocate

Submission that filing an execution application does not require production of the original decree. Order XXI Rule 11 allows an execution application to be oral or written and, in certain situations, a certified copy suffices.
Reference to Order XLV Rule 15 CPC: an application for enforcement of a Supreme Court decree may be made to the court from which the appeal was carried with a certified copy; only a certified copy is necessary to prefer the execution application, and the original need not be present at filing.
Relied on case law (Sri Satyendra Nath Ghosh v. Gulf Oil Corporation Ltd.) to argue that this Court could pass protective interim orders (injunctions, appointment of special officers/receivers) to protect properties from injury even if ultimate execution by attachment and sale would be effected elsewhere.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohit Bhargava v. Bharat Bhushan Bhargava, (2007) 4 SCC 795	Principle that a court should not execute a decree against immovable property situated outside its territorial jurisdiction; limits on attachment/execution where property lies outside local limits.	The Court relied on this authority to hold that an order of attachment (which is an injunction restraining disposition of property) cannot be validly passed by this Court in relation to properties outside its jurisdiction. The decision was treated as leading authority for the proposition that protective orders are limited and do not permit attachment over out-of-jurisdiction property belonging to a party.
Sri Satyendra Nath Ghosh v. Gulf Oil Corporation Ltd., 2009 (1) CHN 397	Permits protective interim orders (injunctions, appointment of special officers/receivers) by a court entertaining execution to protect property from injury and to preserve value, subject to limitations.	The Court acknowledged this decision as supporting the limited power to make protective interim orders to preserve property. However, the Court distinguished its facts and noted that such protective orders do not authorize continued attachment of property outside jurisdiction; the decision was used to explain that protective measures may be justified temporarily but cannot displace the jurisdictional limits under Section 39 CPC.

Court's Reasoning and Analysis

The Court's reasoning follows statutory construction of the Code of Civil Procedure and the Supreme Court Rules, read alongside relevant case law.

Identification of the "court which passed the decree":
The Court observed that Section 37(a) CPC requires that when a decree has been passed by an appellate court, the court of first instance is to be reckoned as the court which passed the decree. Because the Supreme Court decided the appeal from this High Court, this High Court is to be treated as the court which "passed" the decree for purposes of execution and related provisions (Sections 37–39 CPC).
Construction of rules on transmission of the original decree:
The Court examined Order XIII Rules 5 and 6 of the Supreme Court Rules, 1966, together with Order XLV Rule 15 CPC. Rule 6 requires the Registrar of the Supreme Court to transmit the decree to the court from which the appeal was brought and states that "steps for the enforcement of such decree or order shall be taken in that Court or Tribunal in the way prescribed by law." The Court construed the conjunctive phrasing to indicate that, ordinarily, steps for enforcement should follow receipt of the original decree in the registry of the court below. It concluded that, as a matter of scheme, the original decree ought to be in the registry of this Court before execution proceeds, although Order XLV Rule 15(1) permits filing an execution application in the High Court on a certified copy.
Whether absence of the original decree mandates dismissal:
The Court held there is no mandatory rule requiring dismissal of an execution application merely because the original Supreme Court decree is not yet in the file. Filing and initial prosecution of the application on a certified copy is permitted by Order XLV Rule 15(1) and related original-side rules; the absence of the original is procedural and does not, by itself, justify dismissal if justice requires otherwise.
Territorial jurisdiction and power to attach:
The Court analysed Section 39 CPC (including sub-sections (b), (c) and sub-section (4)) and Section 41. Section 39(4) expressly provides that nothing authorises the court which passed a decree to execute it against any person or property outside the local limits of its jurisdiction. Order XXI Rule 54 CPC was examined to determine what constitutes attachment of immovable property (an order prohibiting the judgment-debtor from transferring or charging the property and public proclamation). The Court concluded that an injunction restraining disposal is, in substance, an attachment.
Application of precedents to interim orders already passed:
The Court accepted that a court can, in certain circumstances, make protective interim orders (e.g., injunctions, appointment of special officers) to preserve property threatened by third parties or injury (as in Sri Satyendra Nath Ghosh and following Mohit Bhargava). However, those protective powers are limited: a court cannot pass attachment orders (i.e., injunctions operating as attachment) over properties that are outside its territorial jurisdiction as against a party's property. The interim ex parte order of 1 November 2011 — appointing Joint Special Officers and restraining the judgment debtors from dealing with properties outside this Court's jurisdiction — was therefore treated as an invalid attachment in relation to those out-of-jurisdiction properties.
Practical and procedural resolution:
The Court decided not to dismiss the execution application. Instead it vacated the interim order of 1 November 2011, discharged the Joint Special Officers, and stayed the execution application pending receipt by this Court's registry of the original Supreme Court decree dated 1 September 2003. The Court reasoned that (a) some properties small in extent are within this Court's jurisdiction, (b) the scheme of Part II of the CPC contemplates transmission and reporting between courts (Sections 38, 39, 41 and 42), and (c) the ultimate result of execution (satisfaction or failure) should be recorded by the court which passed the decree (here treated as this Court).

Holding and Implications

Core Holding:

The interim ex parte order dated 1 November 2011 appointing Joint Special Officers and restraining the judgment debtors from transferring or encumbering properties situated outside this Court's jurisdiction is vacated; the Joint Special Officers are discharged; the execution application E.C. 390 of 2011 is not dismissed but is stayed until the original decree of the Supreme Court dated 1 September 2003 is received by this Court's registry.

Immediate consequences for the parties

The interim protective measures (inventory-taking and injunction) ordered on 1 November 2011 cannot continue insofar as they operate as attachments over properties situated outside this Court's territorial jurisdiction; those orders are vacated and the appointed officers discharged.
The execution application remains on this Court's file but is stayed pending transmission/receipt of the original Supreme Court decree. The petitioner may request the Registrar, Original Side, to obtain the original decree from the Supreme Court registry; thereafter execution proceedings may be resumed or the decree transmitted to the competent court(s) under the statutory scheme.
The Court did not order dismissal because (i) some properties are within its jurisdiction and (ii) the statutory framework contemplates transmission and further reporting between courts rather than outright dismissal for procedural non-compliance with the presence of the original decree.

Broader implications and precedent

The judgment clarifies the interaction between Order XIII Rules 5 & 6 of the Supreme Court Rules, Order XLV Rule 15 CPC and relevant provisions of the CPC (Sections 37, 38, 39, 41 and Order XXI Rule 54): while filing an execution application on a certified copy is permissible, the registry-to-registry transmission of the original decree remains part of the overall procedural scheme and, crucially, territorial limits on attachment under Section 39 CPC constrain a court from making attachment orders over immovable properties outside its jurisdiction. The Court did not purport to lay down any novel legal principle beyond applying existing statutory provisions and precedent to the facts.

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Smt. Madvai Ahluwalia Petitioner v. Vimal Kumar Gupta & Ors. S

The Judgment of the Court was delivered by

I.P Mukerji, J.:—

FACTS:

One was an execution application. The other was an application by some of the parties therein, being the respondent nos. 2(a)(b)(c) and (d) for dismissal of that application. They were supported by the other appearing respondents. All describe themselves as decree-holders.

The history or the merits of the matter are not very important. But some facts may be noted in passing. On 28th June, 1975, two families, the Guptas and the Sharmas entered into an agreement for many purposes. Those purposes are not important at all at this stage. The agreement had an arbitration clause. An arbitrator was appointed who made his award on 29 June, 1996. Some members of the Gupta family challenged this award. On 5 June, 1978, the award was set aside by this court. An appeal was preferred before its division bench. On 1st August, 1997 the order of the learned trial judge was affirmed by the bench. The matter did not rest there. It was carried in appeal to the Hon'ble Supreme Court of India. Two Special leave petitions were filed. They were admitted and converted into civil appeals. The appeals were heard by the said court. Finally, on 1 September, 2003, the Supreme Court set aside the judgment and order of this court. The consequence of this was that the award was upheld. In the concluding part of the judgment and order, the court observed that a proper proceeding may be initiated by the parties before the executing court, if the occasion so arose. It also said that the award made and published by the arbitrator was the rule of the court. Any transaction concerning the parties involved would be subject to this decree. The executing court was directed to look into these matters.

In those circumstances, this execution application was filed in this Court by Smt. Madhavi Ahluwalia. It was filed on 28 September, 2011. The tabular statement of this application asked for a receiver to take possession of properties mentioned in schedule I of the application. The receiver was to reconvey the properties mentioned in schedule II. The receiver would also collect rents and profits of the properties mentioned in schedule VI. The judgment debtors should not part with possession of the properties mentioned in schedule I, II, III and IV and annexures ‘D’, ‘E’, ‘F’ and ‘G’ of the application.

There is no dispute that nearly all the properties are situated outside the jurisdiction of this court. Two minor properties are within its jurisdiction.

On 5 December, 2011, the said application for dismissal of the execution application was made.

Now, between the date of filing of the execution application and the application filed on 5 December, 2011 I passed an exparte order on 1 November, 2011 in the execution application appointing joint receivers to make an inventory of the properties described in schedule I and VI of the tabular statement. An order of injunction was also passed restraining the respondents from dealing with those properties.

According to the application of the respondent No. 2 group, this court had no competence to proceed with the execution and adjudicate the questions required to be adjudicated by the order of the Supreme Court. They have taken a very technical ground. The application for execution is one for execution of a judgment and decree of the Supreme Court. The original decree had to be transmitted by the Supreme Court to this court under order XIII rules 5 and 6 of the Supreme Court Rules, 1966, before an execution application could be filed. Since, the original decree has not been so transmitted by the Supreme Court, this execution application was incompetent.

Secondly, nearly all the properties and all the properties against which execution is levied are situated outside the jurisdiction of this court. Therefore, on a consideration of Section 39 of the Civil Procedure Code, particularly the last sub section this court had no jurisdiction to entertain this execution application.

There is no dispute that the original decree passed by the Supreme Court on 1 September, 2003 has not been sent by that court to this Court.

ARGUMENTS:

EXECUTION OF SUPREME COURT DECREE

On behalf of the above parties resisting execution of this decree in this court, a lot of arguments were made, based on order XIII Rules 5 and 6 of the Supreme Court Rules 1966. These two Rules are inserted below:

“5. Every decree passed or order made by the Court shall be drawn up in the Registry and be signed by the Registrar or Deputy Registrar and sealed with the seal of the Court and shall bear the same date as the judgment in the suit or appeal.

6. The decree passed or order made by the Court in every appeal, and any order for costs in connection with the proceedings therein, shall be transmitted by the Registrar to the Court or Tribunal from which the appeal was brought, and steps for the enforcement of such decree or order shall be taken in that Court or Tribunal in the way prescribed by law.”

Rule 6 enjoins the Registrar of the Supreme Court to transmit a decree passed by that court to the court from which the appeal was brought. In other words, the Registrar of the Supreme Court was required to transmit the decree dated 1 September, 2003 to this court. The next part of the rule is quite important. It says “……………..and steps for the enforcement of such decree or order shall be taken in that court or tribunal in the way prescribed by law”. The argument was that unless the original decree of the Supreme Court was received by this Court, the applicant for execution of the decree had no right to put it into execution. The said decree, having not been received by this court from the Supreme Court, it could not have been put into execution here. The application for execution was incompetent. This court had no jurisdiction to entertain the application. Consequently, the order that had been passed in execution was to be vacated and the execution application dismissed. These arguments were made on behalf of different parties, including those supporting the second respondent group by Mr. Shamyal Sarkar, Advocate and then by Mr. Surajit Nath Mitra, Senior Advocate.

On the other hand, Mr. Samit Talukdar, learned Senior Advocate for the applicant in the execution application submits that for filing of an execution application, the original decree is not required. Under Order 21 Rule 11, such an application may be oral or written without a copy of the decree. In some cases, the court may insist on production of a certified copy of the decree. Only under the rules on the Original Side of this court the application for execution has to be accompanied by a certified copy of the decree. He invites my attention to order 45 rule 15 of the Civil Procedure Code which relates to enforcement of a decree or order of the Supreme Court. Under sub rule 1, an application for enforcement of such decree is to apply to the court from which the appeal was carried to the Supreme Court. Under sub rule 2 if the High Court was itself an appeal court it would transmit the decree or order of the Supreme Court to the court of first instance. On the basis of these rules Mr. Talukdar contended that only a certified copy of the decree was enough for preferring the instant application. sub rule 2 was relied upon, by Mr. Mitra, learned Senior Advocate to emphasise that these rules specifically refer to the original decree or order of the Supreme Court being transmitted to the court of the first instance. Therefore, transmission of the decree by the Supreme Court was fundamental to this court entertaining the execution application.

NO PROPERTY WITHIN JURISDICTION

The next contention of the parties resisting execution of the decree was that the properties against which execution was sought to be levied under the decree of the Supreme Court were all situated in Guntur, Karnataka, Alwar, Rajasthan, Kanpur, Uttar Pradesh and Siliguri, West Bengal outside the jurisdiction of this court. The learned counsel for the applicant for execution of the decree submitted that some properties, although minor, were situated at Jagannath Ghat, Strand Road and Hindustan Building, Chittaranjan Avenue, Kolkata, within the jurisdiction. Since the said properties subject to execution were outside the jurisdiction of this court, this court ought not to have exercised its jurisdiction to pass the said order appointing a special officer to make inventory of those properties and issuing an injunction restraining transfer or encumbrance thereof. Since, the decree was liable for transmission to other courts outside its jurisdiction this court ought to have dismissed this execution application. At any rate the order passed ought to be vacated.

My attention was drawn to the case of Mohit Bhargava v. Bharat Bhushan Bhargava, reported in (2007) 4 SCC 795 which underlines the proposition that the court should not execute a decree against any immovable property which is situated outside its jurisdiction. In answer to this, Mr. Talukdar showed me Sri Satyendra Nath Ghosh v. Gulf Oil Corporation Ltd., reported in 2009 (1) CHN 397. He argued, on the basis of this decision that the court while executing a decree passed an order of attachment and sale. Following the principles laid down in the case of Mohit Bhargava this mode of execution could not be levied by the court. But the court always had the power to protect a property against which execution was levied by passing an order of injunction restraining disposition of the property and appointing a special officer to protect the property from loss or diminution in value.

In my opinion, both these objections which are taken are correlated and have to be dealt with together.

DISCUSSION AND FINDINGS:

In determining the issues involved, it is very necessary to examine the relevant provisions of the Code of Civil Procedure and the Supreme Court Rules regarding execution of a decree against a property which is outside the jurisdiction of the court.

I think it is very relevant to understand which court is to be deemed to be the court which passed the decree. Section 37(a) is applicable to the case at hand. It says that when the decree has been passed by the appeal court, the court of first instance is to be reckoned as the court which passed the decree. In this case, the decree was passed by the Supreme Court On an appeal from an order of this court. Therefore, this court is to be taken as the court which passed the decree. Section 38 provides that a decree may be executed by the court which passed it or by the court to which it is sent for execution. Next is the provision in section 39 for transfer of the decree.

Sub sections (b) and (c) are applicable here. They are inserted below:

“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)……………………………..

(b) if such person has no 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”

The explanatory sub section 4 is often cited to support the submission that if the property is not within the jurisdiction of the court passing the decree, it does not have the competence to execute it. It is in the following terms:

39. (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.”

I consider section 41 to be very crucial. It says that the transferee court will certify to the court which passed the decree regarding its execution. When it is unable to execute the decree it will also certify accordingly.

Now, let us come to Order XXI Rule 10 of the Code. Note the language of the rule. The holder of a decree may apply to the court which passed the decree or to the court to which the decree is sent for execution.

Such an application may be oral or in writing. It can only be oral under Rule 11 if the decree is for payment of money and the judgment debtor is within the court. Otherwise, the application is to be in writing fulfilling the requirements of sub rule 2. There is no requirement under the Code to file a certified copy of the decree but sub rule 3 empowers the court to insist on a certified copy of the decree. Chapter XVII Rule 10 of our Original Side Rules, however, enjoins the decree holder to apply for execution of the decree by appending a certified copy of the decree.

Now, let us come to Order XLV Rule 15 which provides for enforcement of a decree of the Supreme Court. We will assume that the appeal to the Supreme Court in which the decree was passed by it, was from a judgment and decree of the High Court. It permits an application for execution in the High Court with a certified copy of the decree or order. The rule assumes that the decree was first passed by a court lower than the High Court. It provides that the High Court is to transmit the decree to the First Court. Now, Rule 1 enacts that an application may be made to the High Court by a certified copy of the decree. Rule 2 does not say that the certified copy of the decree is to be transmitted to the court below. It only says “decree or order”. Mr. Surajit Nath Mitra, Senior Advocate contends on this basis that the decree or order referred to here is the original decree or order. I think he is right.

A harmonious construction of order XLV Rule 15 and Rules 5 and 6 of Order XIII of the Supreme Court Rules 1966 is necessary. In our case, the High court is not required to send the decree down to any first court, under Rule 15(2). If it is so permissible, it is required to entertain the execution application itself or transmit it to another court. Therefore, the first rule of order XLV has to be read and applied in isolation. Then, the question is whether the transmission of the original decree from the Supreme Court was absolutely essential to maintain the present execution application.

On my construction of Order XIII Rules 5 and 6 of the Supreme Court Rules 1966 together with Rule 15 of the Code of Civil Procedure, 1908, the registry of the Supreme Court was required to transmit the original decree to the registry of this court. The use of the conjunction “and” in Rule 6 expresses the intention of the rule maker that steps for enforcement of the decree can only be taken after the original decree has been sent to and received by the Court below. Rule 15 of order XLV also makes it explicit, in case of execution of decrees by courts lower than the High Court, the decree is to be sent down by the High Court to the lower court. An application for execution can be made by a certified copy of the decree but after such application is made and allowed, the original decree has to be transmitted.

Therefore, this clearly indicates that the original decree of the Supreme Court must be the in the file of the court before an execution application is made. As far as this case is concerned, no decree is to be transmitted to the lower court but still on a consideration of the whole scheme of order XIII Rules 5 and 9 of the Supreme Court Rules 1966 and Order XLV Rule 15 of the Civil Procedure Code, the original decree had to be in the registry of this court before the above execution application was filed.

Nevertheless sub rule 1 of Rule 15 of Order XLV permits an execution application to be filed in the High court with a certified copy of the decree. Chapter XVII of the Original Side Rules also permits filing of an execution application on the basis of a certified copy of the decree.

I do not find any mandate in the above law or rules for dismissal of an execution application because the original decree of the Supreme Court is not in the file of the court. It is a matter of procedure. The procedure has to be followed. But when the Supreme Court has not sent the original decree and the decree holder has filed an application for execution of that decree on the basis of a certified copy thereof, which is permitted both by the Code of Civil Procedure and by the Original Side rules, I do not think it would serve the purpose of justice to dismiss the application, just because the original decree of the Supreme Court is not in the file of the court.

The point taken with regard to section 39 of the Code of Civil Procedure is more substantial. The section makes it plain that a court cannot execute a decree against a person or property situated outside the jurisdiction of the court which passed the decree. Here, execution against the person of the judgment debtors is not relevant. By the said ex parte interim order passed by me I had appointed Joint Special Officers to make inventory of the properties of the judgment debtors at Guntur, Andhra Pradesh, Kanpur in Uttar Pradesh, Alwar in Rajasthan and Siliguri, in Darjeeling, West Bengal. All the properties are outside the territorial jurisdiction of this court. I had also passed an order of injunction restraining the judgment debtors from transferring or encumbering or otherwise dealing with those properties.

Now, it has to be ascertained to what extent this procedure was correct?

Execution is levied against a property by its attachment and sale. Now, the manner of making attachment is provided in Order XXI Rule 54. It is in the following terms:

“54. Attachment of immovable property.- (1) Where the property immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

[(1A) The order shall also require the judgment debtor to attend Court on a specified date to take notice of the date to be fixed for setting the terms of the proclamation of sale.]

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate [and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.]”.

Although Mr. Talukdar tried to contend to the contrary, it is quite plain that attachment is nothing but an order of injunction restraining the judgment debtor from transferring or charging the property in any way. Additionally, an attachment warns and prohibits all persons from taking any benefit from such transfer or charge. The attachment is proclaimed as provided in sub rule 2 of Rule 54. Sri Satyendra Nath Ghosh v. Gulf Oil Corporation Ltd., reported in 2009 (1) CHN 397 para 3 was referred to by Mr. Talukdar for the decree holder. It suggested that the court while entertaining an execution application could pass an order restraining the parties from transferring or encumbering the property, in order to protect the property from injury and for its preservation. In that case the Appeal Court upheld some protective interim orders which had been passed by the trial court. The facts of that case are quite complicated. There was participation by the judgment debtor in the execution proceedings for sometime before the objection regarding jurisdiction was taken by them. The Court observed that it was not inclined to bring execution to a “premature halt”. It said nothing about continuance of the execution in future, against the property of the judgment debtor outside its jurisdiciton. That judgment, in turn relied upon the leading judgment of the Supreme Court in the case of Mohit Bhargava v. Bharat Bhushan Bhargava, reported in (2007) 4 SCC 795 (Supra).

Therefore, an order of injunction in an execution application is an order of attachment. Since, it is an order of attachment it cannot be passed with regard to a property belonging to a party and which is outside the jurisdiction of the court. The case of Mohit Bhargava (Supra) only approved an order of injunction or any other protective order like appointing a Receiver or Special Officer to protect the property subject to execution which was threatened to be injured by a third party. Short of that, there is no power in an executing court to pass orders of injunction on a property outside its jurisdiction; belonging to a party.

Hence, the said interim order passed by this court in the execution application appointing a Special Officer to make an inventory of property coupled with an order of injunction restraining the judgment debtors from transferring or encumbering the property, was an order in the nature of attachment of properties situated outside the jurisdiction of this court. Hence, I vacate the interim order dated 1 November, 2011. The Joint Special officers cannot continue, as their continuance will interfere with the authority of the Competent Court to appoint a Receiver or Special Officer.

Furthermore, in view of my findings I would not like to dismiss the execution application but keep it stayed to enable the registry of the Supreme Court to send the original decree to this court. After the decree is received by our registry the execution application may be proceeded with. I say proceeded with because the execution application cannot be dismissed. First, for the reason that some of the properties, however, small are situated within the jurisdiction of this court, as stated before. Secondly, considering the scheme of part II of the Code of Civil Procedure the decree is to be sent to the competent court for execution by the Court which passed it, which is this Court (see section 39). The court to which the decree sent is required to report the result of the execution proceedings to the court which transmitted the decree (See section 41). The court to which the decree is transmitted can further transmit the decree to another court (see section 42). All these results are to be received by the court which passed the decree, which is, this court. It is quite possible that the ultimate satisfaction or the failure to obtain satisfaction of the decree has to be recorded by the court which passed the decree, which is again this court. This is recognised in section 38 read with section 47 of the Code of Civil Procedure.

Therefore, the application by some of the judgment debtors G.A 3469 of 2011 partly succeeds. The interim order dated 1 November, 2011 is vacated. The Joint Special Officers are discharged. The execution application E.C 390 of 2011 will remain in the file of the court, but is stayed till the original decree of the Supreme Court dated 1 September, 2003, concerning the parties is received by the registry of this court. For this purpose the petitioner may request the Registrar, Original Side to approach the registry of the Supreme Court for obtaining the original decree. Thereof any decree holder may take steps on the basis of this order for execution or transmission of the decree to the competent court.

Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.

Smt. Madvai Ahluwalia Petitioner v. Vimal Kumar Gupta & Ors. S

Judgment Summary — I.P. Mukerji, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents opposing execution (respondent nos. 2(a)–(d) and supporting parties)

Applicant for execution (Smt. Madhavi Ahluwalia) — represented by Mr. Samit Talukdar, Senior Advocate

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Immediate consequences for the parties

Broader implications and precedent

Smt. Madvai Ahluwalia Petitioner v. Vimal Kumar Gupta & Ors. S

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