- (1.) 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 29th June, 1996. Some members of the Gupta family challenged this award. On 5th 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 1st 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.
(2.) In those circumstances, this execution application was filed in this Court by Smt. Madhavi Ahluwalia. It was filed on 28th 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 5th 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 5th December, 2011 I passed an exparte order on 1st 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.
(3.) 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 1st 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 1st 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.;