The order deputing Special Bailiff to execute the warrant of attachment of movables, purporting to be in exercise of the power under Rule 224 of the Civil Rules of Practice, is still worse. The movables in question belonged to the judgment-debtor who at the time of execution of the warrant resided at Bombay. The movables were in his custody at his residence at Bombay. No Court can execute a decree by attachment of properties situate entirely outside its territorial jurisdiction. It is rather difficult to believe that the Vacation Judge, who is a senior Judicial Officer, was ignorant of the provisions of the Civil Procedure Code reproduced above, which provide for transfer of decree to another Court within the State and to Court in another State for execution in such manner as might have been prescribed by Rules in force in the State.
Karnataka High Court
Shyamsunder D. Chugh vs Ram Narayan on 31 May, 1995
Equivalent citations: ILR 1995 KAR 2036
Bench: Shivaprakash
1. This Civil Revision Petition is presented by the judgment-debtor aggrieved by the order dated 30-5-1994 passed in Execution Case No. 4207/94 by the Court of the Small Causes at Bangalore.
2. The facts of the case in brief are as follows:
The judgment-debtor is the father-in-law of the decree-holder who is the respondent in this Petition, The decree-holder had instituted a money suit in the Court of the Small Causes, Bangalore. The said suit was decreed on 31-3-1994 after contest in terms of which the judgment-debtor had to pay Rs. 6662=50 to the decree-holder. It appears against the judgment and decree, the judgment-debtor has preferred CRP 1619/94 and the same is pending before this Court.
3. Meanwhile, the decree-holder took out execution of the decree. The Execution Petition was filed on 3-5-1994 (during Summer Vacation) by the decree-holder for recovery of a sum of Rs. 7725/-inclusive of costs and current interest. The said Execution Petition was filed before the Vacation Court with an application under Section 21(3)(b) of the Small Causes Courts Act, 1964 seeking permission of the Court to present the Execution Petition during the vacation on the ground that the matter was urgent. It appears another application was also filed simultaneously under Rule 224 of Karnataka Civil Rules of Practice seeking deputation of a Special Bailiff to execute the warrant of attachment of the moveables for the reasons stated in the affidavit in support of the application.
4. The Executing Court on the application seeking leave of the Court to present the Execution Petition during vacation permitted filing of the Execution Petition before the Vacation Court.
5. On the basis of the affidavit of the decree-holder and the submission of the learned Counsel that no stay of the judgment and decree under execution had been granted by this Court, and in view of Order 21 Rule 22 of the C.P.C., that if the decree is not more than two years old it was not mandatory to issue cause notice to the judgment-debtor before proceeding to consider the relief sought for by the decree-holder, the Court ordered issue of warrant of attachment of movables of the judgment-debtor shown in the list of movables upto the extent of the claim amount of Rs. 7725/-.
6. On the application I.A.2 for deputation of a Special Bailiff to execute the warrant of attachment of the movables, the Court ordered deputation of a Special Bailiff to execute the warrant of attachment of movables. The case was adjourned to 27.6.1994. However, on 30.5.1994 an application I.A.3 was filed on behalf of the decree-holder under Section 151 CPC praying for advancement of the case from 27.6.1994 to 30.5.1994. In the order-sheet dated 30.5.1994 it is noticed that "M/W returned unexecuted for want of police help."
7. It seems the learned Counsel for the decree-holder filed a Memo under the signature of the decree-holder stating that the judgment-debtor has not deposited the amount in the Court after filing of the Execution Petition; and on the application filed under Section 151 for advancing the date of hearing, the Court has taken up the case on 30.5.1994 and on that day the decree-holder has filed another application under Section 151 C.P.C., supported by an affidavit seeking police help and for breaking open the lock to get warrant of attachment of movables executed. One more application has been filed on the same day under Rule 224 of the Karnataka Civil Rules of Practice, 1967 seeking deputation of Special Bailiff to execute the warrant alleging that the warrant of attachment of movables previously issued had been returned unexecuted since the judgment-debtor obstructed due execution of the warrant by closing the doors and putting the lock on the premises and thus preventing the Bailiff from executing the warrant. It appears in the report submitted by the Bailiff while returning the warrant mention is also made that Matunga Police at Bombay did not render any assistance since there was no specific order of the Court in that regard.
8. The Court while considering the above application, noticed that the previous order of attachment had been returned unexecuted. It allowed I.A.4 permitting breaking open of the lock, to seek police help and also directed the police to give assistance. The Court directed issue of fresh warrant for attachment of the movables. The second application for deputation of Special Bailiff for execution of the attachment of movables and if necessary to break open the lock by taking necessary police help, was also ordered.
9. Smt.M.N. Pramila, learned Counsel for the petitioner submitted, that in the circumstances of the case the decree-holder could not have invoked the provisions relied upon by him to move the Vacation Court and the Court ought not to have entertained the Execution Petition during the vacation period. The learned Counsel also submitted that the application, purporting to be under Rule 224 of the Civil Rules of Practice seeking deputation of a Special Baillff to execute the warrant of attachment of movables of the judgment-debtor situated outside the State, was totally misconceived and the Court exceeded its jurisdiction in granting the same.
10. From the records it appears that the decree-holder was successful in getting certain movables, including a Video Cassette Recorder of the judgment-debtor, attached pursuant to the order under Revision.
11. The relevant provisions of the Code of Civil Procedure, Karnataka Civil Rules of Practice and the Karnataka Small Causes Courts Act, 1964, which were referred to by the learned Counsel for the parties and which bear upon the questions raised in this Petition are set out below:
Code of Civil Procedure:
"Section 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) If the person against whom the decree is passed actually and voluntarily resides 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 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, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
(3) For the purpose 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."
"Section 40. Transfer of decree to Court in another State:-Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State."
"Section 46. Precepts:- (1) Upon the application of the decree holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:
Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree holder has applied for an order for the sale of such property."
"Order 5 Rule 22: Service within presidency towns of summons issued by Courts outside - Where a summons issued by any Court established beyond the limits of the towns of Calcutta, Madras and Bombay is to be served within any such limits, it shall be sent to the Courts of Small Causes within whose jurisdiction it is to be served."
"Order 21 Rule 5: Mode of transfer.- Where a decree is to be sent for execution to another Court, the Court which passed such decree shall send the decree directly to such other Court whether or not such Court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction."
"Order 21 Rule 6; Procedure where Court desires that its own decree shall be executed by another Court - The Court sending a decree for execution shall send,-
(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied, and
(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect."
Karnataka Small Causes Courts Act, 1964:
"Section 21. Vacation.- (1) The Courts of Small Causes in the State or in any area of the State, shall be closed on such days as may be notified by the State Government as Public Holidays, for the whole State or for any area in the State.
(2) The Courts of Small Causes shall have three vacations in each year, summer, dasara and winter and the total number of days of the said three vacations together shall not exceed sixty days and the High Court shall fix the period of each vacation.
(3) Notwithstanding anything contained in this Act:-
(a) the High Court may, where there are more than one Judge in any Court of Small Causes, designate by notification, any one or more of those Judges as Vacation Judge or Judges for the duration of the adjournment of such Court of Small Causes during any vacation, or part thereof;
(b) Where there is only one Judge in any Court of Small Causes, the High Court may, designate by notification such Judge or appoint any Civil Judge in the district, as the Vacation Judge for the duration of the adjournment of such Court of Small Causes during any vacation or part thereof. The High Court may regulate by special or general order work to be discharged by the Vacation Judge, or Judges, Court of Small Causes.
(4) (a) The local limits of the jurisdiction of the Vacation Judge, Court of Small Causes shall be the same as those of the Courts of Small Causes concerned.
(b) The jurisdiction of the Vacation Judge, Court of Small Causes shall extend to all suits or proceedings cognizable by the Court of Small Causes concerned.
(5) The place at which the Court of the Vacation Judge, Court of Small Causes, shall be held, shall be the same at which the Court of Small Causes concerned may be held. The Senior Vacation Judge or the Vacation Judge as the case may be, shall have such administrative control over the staff of the Court of Small Causes concerned, as the High Court may, by general or special order, determine.
(6) Notwithstanding the designation of the Vacation Judge or Judges, the Court of Small Causes concerned shall, during the period it is adjourned for any vacation, be deemed to be closed for the purpose of Section 4 of the Limitation Act, 1963 (Central Act 36 of 1963)."
Karnataka Civil Rules of Practice, 1967:
"Rule 224. Special Process Servers.- The Presiding Officer of any Court may direct, on the application of the party applying for the particular process, which should ordinarily be sent for service to an outlying Court, that it be served or executed by a Special Process Server or Amin from head quarters, provided that, the charges for such process server at the rate of Rs. 1-50 a day for a Process Server, and Rs. 2-00 per day for an Amin for the time he is likely to be employed on such duty, be paid in advance; and the Presiding Officer may, for any sufficient reason, direct that such extra charge be costs in the suit or proceeding."
12. In the order dated 3.5.1994, the Court has merely narrated the facts regarding filing of the Execution Petition for recovery of the amount and that the Execution Petition has been filed within two years of the passing of the decree and the prayer of the decree holder was for attachment of movables. The aforesaid circumstances according to the Court constitute "sound and justifiable grounds to pass an order of attachment of movables belonging to judgment-debtor shown in the list of movables....." The above order is followed by another order allowing the application seeking deputation of a Special Bailiff to execute the warrant of attachment of movables.
13. Two Questions arise for Consideration: 1) Was the Court, in the circumstances of the case, justified in permitting presentation of the Execution Petition during vacation period and ordering attachment of movables belonging to the judgment-debtor situated outside the State of Karnataka? 2) Was the deputation of a Special Bailiff by the Executing Court to attach movables outside the State and beyond the jurisdiction of the Court in accordance with the provisions of the Code of Civil Procedure and the Civil Rules of Practice?
14. In BHAWARLAL v. MAHMAD HUSSAIN SAB, this Court while considering the provisions of Section 28 of the Karnataka Civil Courts Act, 1964 and the relevant notification issued by the High Court has observed thus:
"6. Now the question is whether a Vacation District Judge was justified in entertaining the execution case and order the issue of delivery warrant under Order 21 Rule 35 of the Code of Civil Procedure. The latter portion of Section 28(3) reads, as-
"The High Court may regulate, by special or general order, work to be discharged by the Vacation Civil Judge or the Vacation District Judge."
Therefore, the work that is to be discharged by the Vacation District Judge or the Vacation Civil Judge, would be regulated by a notification to be issued by the High Court. In this case, there are two notifications issued by this Court.
xxx xxx xxx
Part II of the second Notification reads as-
"In exercise of the powers conferred under sub-section (3) of Section 28 of the Karnataka Civil Courts Act, 1964, the Vacation District Judge/Vacation Civil Judges are directed to dispose of urgent Civil matters in which injunction, stay of proceedings and attachment orders etc., are sought for during the Summer Vacation of 1987."
Therefore, the exercise of the powers by the Vacation Courts, as laid down by latter portion of Section 28(3)(b) of the Karnataka Civil Courts Act, is regulated by the High Court Notification. The High Court Notification simply directs the Vacation Courts to dispose of urgent civil matters in which injunction, stay of proceedings and attachment orders etc., are sought for, during the Summer Vacation of 1986. Therefore this Notification makes it clear that the Vacation District Judge or the Vacation Civil Judge is required to dispose of urgent matters in which injunction, stay or proceedings and attachment orders etc., are sought for. The wisdom behind this Notification is that the parties seeking injunction, stay of proceedings and attachment etc., should not suffer for the closure of the Court during summer vacation. It is not as if the Vacation Court can pass all orders, which a Civil Court can exercise during the working days. If the Vacation Courts are required to dispose of all civil proceedings of any nature whatsoever, then there was no necessity for this Court to restrict the exercise of powers to certain matters like injunction, stay of proceedings, attachment orders etc."
15. In the instant case the High Court in exercise of the powers conferred by Clause (a) of sub-section (3) of Section 21 of the Karnataka Small Causes Courts Act, had issued Notification dated 19,4.1994 designating the Judges as the Vacation Judges during the period of Summer Vacation 1994. The Notification is reproduced below:
"No.GOB-(l) 237/94 High Court of Karnataka,
Bangalore
dt. 19th April, 1994.
NOTIFICATION
PART -I
In exercise of the powers conferred by Clause (a) of sub-section (3) of Section 21 of the Karnataka Small Causes Courts Act, 1964, the High Court of Karnataka hereby designates the Judges mentioned in Column No. 2 of the table below as the Vacation Judges for the duration of adjournment of Small Causes Court mentioned in Column No. 3 for the period of Summer Vacation of 1994 noted in Column No. 4.
TABLE SI. No. Designation Small Causes Court Period From To
1. XVII Addl. Judge, Courts of Small Causes, Bangalore City Bangalore City 25.4.94 17.5.94
2. Chief Judge, Court of Small Causes, Bangalore City
-do-
6.5.94 17.5.94
3. VII Addl. Judge, Courts of Small Causes, Bangalore City
-do-
18.5.94 29.5.94
4. Judge, Court of Small Causes, Mysore Mysore 25.4.94 & 28.5.94 12.5.94 29.5.94
5. 1 Addl.Civil Judge & CJM, Mysore
-do-
13.5.94 27.5.94 PART - II In exercise of the powers conferred under Clause (b) of sub-section (3) of Section 21 of the Karnataka Small Causes Courts Act, 1964 the Vacation Judges of Courts of Small Causes are hereby directed to dispose of urgent civil matters in which injunction, stay of proceedings and attachment orders etc; are sought for during the Summer Vacation of 1994.
PART-III In exercise of the powers conferred by sub-section (5) of Section 21 of the Karnataka Small Causes Courts Act, 1964, the Vacation Judge is directed to have the Administrative Control over the staff of Court of Small Causes concerned during the Summer Vacation of 1994.
By Order of the High Court, Sd/-
(M.P. Chinnappa) Registrar General."
16. It is evident from Part II of the Notification that the Vacation Judges of Court of Small Causes were directed to dispose of urgent civil matters in which injunction, stay of proceedings and attachment orders etc., were sought during the Summer Vacation of 1994. Therefore the Vacation Judge who passed the orders on 3.5.1994 entertaining the Execution Petition acted contrary to the directions contained in the Notification. There was no urgency whatsoever for executing a money - decree during summer vacation. The only reason given by the decree-holder in the affidavit in support of the application under Section 21 (3)(b) of the Small Causes Courts Act was a mere allegation that the judgment-debtor was "trying to alienate his properties." In the order dated 3.5.1994, the Executing Court has not applied its mind whether the attachment sought was of such urgency calling for invoking the jurisdiction of the Vacation Judge. In the circumstances, it has to be held, that the order dated 3.5.1994 permitting the decree-holder to execute the decree during Summer Vacation is made in disregard of the directions of the High Court contained in the Notification.
17. The order deputing Special Bailiff to execute the warrant of attachment of movables, purporting to be in exercise of the power under Rule 224 of the Civil Rules of Practice, is still worse. The movables in question belonged to the judgment-debtor who at the time of execution of the warrant resided at Bombay. The movables were in his custody at his residence at Bombay. No Court can execute a decree by attachment of properties situate entirely outside its territorial jurisdiction. It is rather difficult to believe that the Vacation Judge, who is a senior Judicial Officer, was ignorant of the provisions of the Civil Procedure Code reproduced above, which provide for transfer of decree to another Court within the State and to Court in another State for execution in such manner as might have been prescribed by Rules in force in the State.
18. The criticism of the learned Counsel for the petitioner that the concerned Vacation Judge, ought to be more circumspect in the performance of his judicial functions is fully justified.
19. Since the subsequent order dated 30.5.1994 is based on the previous illegal order dated 3.5.1994, the same cannot be sustained. Accordingly, the order dated 30.5.1994 passed in Execution Case No. 4407/1994 on the file of the Small Causes Judge, Bangalore City is set aside. The attachment if any effected pursuant to the above orders is illegal.
20. Revision allowed with costs. Advocates fee is fixed at Rs. 1000/-
No comments:
Post a Comment