- (1.) WE have heard the learned counsel for the parties at length. We have also perused the records. The appellants have impugned the order dated 27-1-2009 by which it has been directed that since the appellants were deliberately absent from the court in spite of opportunity being granted on two separate occasions i. e. 21-1-2009 and 27-1-2009 the direction issued in the order dated 28-11-2008 be implemented. The matter was made returnable on 17-2-2009.
(2.) ON a perusal of the pleadings in the petition it transpires that the respondent had initiated execution proceedings against the appellants for execution of decree being ex parte arbitral award dated 13-1-2006 made and published by the arbitrator. It also transpires from the pleadings of the appellants that a preliminary objection was raised with regard to the territorial jurisdiction of this Court in receiving the execution application in view of Section 39 (4) of the Code of civil Procedure. Prior to such objection being raised, the Trial Court had already passed an order in 28-11-2008. In this order it is noticed, that by order dated 6-11-2008, judgment debtor No. 2 was directed to present herself for examination. None appeared before the trial Court on behalf of the appellants nor was appellant No. 2 present for examination by the Court. Consequently warrant of arrest was issued which has been made returnable three weeks hence. As noticed earlier, thereafter, the application was filed for dismissal of the execution application and as an interim measure prayer was made for stay of the order dated 28-11-2008. On that date the trial Court stayed warrant of arrest till 21-1-2009. Thereafter, it appears on 21-1-2009 the matter was not taken up and it came up for hearing on 27-1-2009. Again, the appellant No. 2 failed to be personally present in court. In these circumstances, the trial court directed that the order dated 28-11-2008 be implemented.
(3.) LEARNED counsel for the appellants submits that the trial Court ought not to have vacated the stay order in relation to the warrant of arrest which had been granted on 15-1-2009 without first hearing the preliminary objections on merits. Learned counsel for the appellants submits that the matter is no longer res integra in view of the judgment of the Supreme Court in the case of Mohit Bhargava v. Bharat bhushan Bhargava, 2007 (4) SCC 795 : (AIR 2007 SC 1717 ). Learned counsel placed strong reliance on the observations made in paragraph 7 of the aforesaid judgment. Undoubtedly, the Supreme Court has held in the aforesaid paragraph that if execution is sought to be proceeded against any person or property outside the local limits of the jurisdiction of the executing Court, nothing in Section 39 of the Code shall be deemed to authorise the Court to proceed with the execution. It is also held that it is not a matter of discretion for 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 situated. However, in our opinion, these observations would not be applicable in the facts and circumstances of this case. As narrated above, when the execution application came up for consideration, the trial court issued the necessary directions under Order 21, R. 41 (1 ). The aforesaid rule clearly provides as under : "41. Examination of judgment-debtor as to his property, - (1) Where a decree is for the payment of money the decree-holder may apply to the Court for an order that - (a) the judgment-debtor or (b) (where the judgment-debtor is a corporation), an officer thereof, or (c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents. ";