- (1.) In all these bunch of execution applications the point has been raised for consideration, as to whether in view of amendment of Section 39 with insertion of sub-section (4) of Civil Procedure Code this Court being executing Court has any authority to execute the decree passed by it against any person residing or touching property situated outside the local limit of its jurisdiction or not. One of the Learned single Judge of this Court in case of Smt. Uma Kanoria v. Pradip Kumar Daga reported in AIR 2003 Cal 162 while interpreting the amended provision of the section has held that in view of insertion of aforesaid subsection (4) the Court which has passed the decree, is not authorized to execute the decree against the person or property residing and situate outside the local limit of its jurisdiction. The Learned Counsels on behalf of the respective persons in all these matters have advanced argument in both ways which are summarized hereunder.
(2.) Mr. A, K. Mitra, Senior Advocate, while leading the argument in support of the point that this Court has not lost its jurisdiction, submits that the power of the executing Court flows from Section 38 of the Code. It will appear from the reading of the language of the said section that the decree may be executed by the Court which has passed it or by the Court to which it is sent for execution. Therefore, it is clear that the Court, which has passed a decree, does not lose jurisdiction to execute it irrespective of location of the property or residence of the person against whom decree is sought to be executed. According to him, it is the convenience of the executing Court either to execute it by itself or to send it to some other Court. The intention of the legislature is that the decree by the Civil Court should not be allowed to be frustrated and the Court must see by any lawful means the fruit thereof is enjoyed. The legislature mandates, if one reads the language of the said Section 39 sub-section (1), clearly that it is the discretion of the Court which has passed the decree, and that too only on the application of the decree holder to send it for execution to another Court of competent jurisdiction under the circumstances as mentioned in Clauses (a), (b), (c) and (d) of the said subsection. Therefore, he contends that newly inserted sub-section (4) in Section 39 has to be read conjointly with rest portion of the Sections 39 and 38. By this provision original power of execution of the Court, which has passed decree, amongst other appointing Receivers, cannot be taken away. His further contention is that the Learned Single Judge rendered the decision noted above, without having assistance of the previous catena of decisions rendered by this Court on this point whereby and whereunder it has been uniformly held that this Court while executing a decree without sending the same for execution to another Court had executed it by appointing a Receiver over property situate outside jurisdiction or requiring the person residing outside jurisdiction of this Court to be present before the Court for execution. The following are the large number of decisions : ILR 66 Cal 513 ILR 14 Cal 661 ILR 15 Cal 667 ILR 19 Cal 13 AIR 1930 Cal 502 AIR 1937 Cal 570
(3.) He urges thereafter that the practice and procedure which is followed from the inception of this Court has got the effect of Rule framed by this Court, which in its turn has been held to be the effect of supreme legislation. The provisions of the Original Side Rules framed by this Court override the provisions of Civil Procedure Code and this principle of law has been decided long time back by Full Bench decision of this Court in case of Manickchand Durgaprasad v. Pratabmull Rameswar reported in AIR 1961 Cal 483 (Full Bench). The aforesaid Full Bench decision of this Court held in paragraph 13 as follows : "The restriction upon the power of the Court as contained in the proviso to Cl. 37 of the Letters Patent is that the rules framed under that clause should, 'as far as possible' be in conformity with the provisions of the Code of Civil Procedure. This restriction as the phrase 'as far as possible' indicates is merely directory. The provisions of the Code of Civil Procedure are intended for the purpose of guidance of this Court in framing rules under Cl. 37 of the Letters Patent. Consequently, if any rule framed by the High Court under Cl. 37 be inconsistent with or confers any additional power besides what is granted by the Code of Civil procedure, the rule framed under Cl. 37 will prevail over the corresponding provisions of the Code of Civil Procedure.";