SAU INDUMATI ARAVINDA DHUPKAR Vs. ARVINDA WAMAN DHUPKAR

JUDGEMENT

(1.) RULE. Rule made returnable forthwith and heard finally by the consent of the learned advocates for the parties.

(2.) BY this petition, the petitioner challenges the order dated 02.02.2008 rendered by the executing Court on execution application (Exh.1) in Special Darkhast No.99 of 2005.

(3.) PERUSAL of Section 39(4) of the C.P.C. would indicate that the executing Court is not deprived of authority to execute decree but the only embargo to put is that it cannot directly execute such a decree when the property or the J.D. is not within the local limits of its jurisdiction. This provision has to be read along with Order XXI Rule 6 of the Code of Civil Procedure. Order XXI Rule 6 provides procedure for execution of decree by another Court. In other words, by taking aid of Rule 6 of Order XXI of the Code of Civil Procedure, the executing Court ought to have directed the precept to be sent to the Nandurbar for due execution of the decree. The disposal of execution petition on the jurisdictional issue is therefore improper and illegal. The executing Court has referred to "Mohit Bhargava Vs. Bharat Bhushan Bhargava & Ors.," (AIR 2007 S.C. 1717). The Apex Court held that it is not within the discretion of the Court either to proceed with the execution of the decree or to transfer it for execution to the Court within the jurisdiction of which the property is situate. In the present case, the execution is not sought against the J.D. for attachment of the monitory benefits available to the J.D. as a result of his superannuation or by his detention. The claim falls under Order XXI Rule 48 of the Code of Civil Procedure. The petitioner, who is wife of respondent No.1, cannot be forced to go to out-station like Nandurbar for execution of the decree for maintenance allowance. The decree is not required to be transferred to Nandurbar Court, but the appropriate procedure that is required to be followed under Order XXI Rule 6 of the Code of Civil Procedure and thereafter to seek help of another Court in order to properly get the fruits of the decree. In this view of the matter, the impugned order is liable to be set aside.