- (1.) This execution application has been filed to execute the decree dated 12th September, 2003. An order was passed on 13th June, 2013 in terms of prayer (a) of Column 10 of the Tabular Statement i.e. restraining the judgment debtors from dealing with or encumbering the assets mentioned in Schedule A & B annexed thereto. On the returnable date the judgment debtors seek to vacate the interim order on the ground that Section 39(4) of the CPC is a bar to execution of a decree against any person or property outside the Court's jurisdiction. Reliance has been placed on (2007) 4 SCC 795. The properties mentioned in Schedule A admittedly is outside the jurisdiction of this Court and as the order in terms of prayer (a) although interim in nature is in aid of the final relief, which final relief cannot be granted by this Court as held in AIR (1952) SC 12 the order be vacated. In view of (1983) 4 SCC 625 and (1977) 3 AER 324 the order dated 13th June, 2013 also needs to be vacated. Reliance is also placed on (2011) 4 CHN 213 for the proposition that no order appointing a Receiver or directing sale can be passed in execution where person and property are outside. Therefore the order dated 13th June, 2013 be vacated in respect of the Delhi property which is outside the jurisdiction of this Court.
(2.) Counsel for the decree-holder submits that the decree is sought to be executed against the partnership firm and one of its properties is situate at Waterloo Street. The restraint order sought is in personam. (2007) 4 SCC 795 does not prohibit passing of an order of injunction on the principle of Mareva injunction. That an order of injunction can be passed in respect of properties situate outside will be reflected best from (1989) 1 AER 433. (2011) 4 CHN 213 and (1977) 3 AER 324 are distinguishable on facts. AIR (2009) Calcutta 227 has been stayed in appeal. AIR (1952) SC 12 and (1983) 4 SCC 625 are not to apply as (1983) 4 SCC 625 was a case under Section 41(b) of the Specific Relief Act, 1963. The order of injunction sought is in personam and for the final relief the decree holder will have to go somewhere else. The order dated 24.4.2013 was passed on an application filed under the 1940 Act in this Hon' ble Court, therefore the order passed be continued.
(3.) In reply counsel for the judgment debtors submits that the address of the judgment debtors given in the decree is of Delhi. The Section 14(2) notice under the 1940 Act was served in Delhi. It has been admitted by the decree-holder in paragraph 11 that the judgment debtors Nos. 10 & 11 are outside the jurisdiction of this Court. Therefore the persons and property are both outside and Order 21 Rule 3 CPC and Section 21 CPC will not apply as there is no pleading to that effect. It has also not been stated that the order of injunction in respect of the Delhi property is restricted to the shares of the judgment debtors Nos. 10 & 11.;