- (1.) In this writ application the petitioner has prayed for quashing the order dated 17-1-06 passed by learned Court below whereby the petitioner's application filed under Section 39 of the C.P.C seeking transfer of the decree from the Court of Sub-Judge, Chaibasa to the Court of learned District Judge, Alipore South, 24 Parganas (West Bengal), has been rejected on the ground that the application under Section 39 C.P.C is prematured and incomplete. The learned Court below is of the view that since no execution petition has been filed in the Court as yet and nothing has been slated about any property of the defendant situated within the State of Jharkhand, there is no occasion for the petition under Section 39 C.P.C.
(2.) Mr. B. L. Jam. learned Sr. counsel appearing on behalf of the petitioner, submitted that the order of leamed Court below is contrary to the provisions of Section 39 of the C.P.C. The petitioner filed an application under the provisions of Section 39 C.P.C for transfer of the decree for execution to the Court at Alipore as the judgment debtor has no immovable/movable property within the Jurisdiction of the Court of learned Sub-Judge at Chaibasa out of which the decree can be satisfied. The respondent has their head office and bank account at Calcutta within the jurisdiction of learned District Judge, Alipore and as such, the decree can be effectively executed and satisfied, if the same is transferred to that Court. He submitted that the Court below has misconstrued the provisions of Section 39 C.P.C in observing that pendency of an application for execution is the condition precedent for passing an order of transfer of decree under Section 39 of the C.P.C. Learned counsel submitted that the provision simply provides for transfer of the decree and not the execution case and as such no application for execution is required to be filed before making an application under Section 39 C.P.C for transfer of the decree for execution to any other Court. Learned counsel drew attention of the Court on the provisions of Sections 40 & 42 of the Civil Procedure Code and submitted that none of the said provisions contemplates pendency of an application for execution in the Court before making an application under Section 39 of the C.P.C.
(3.) Mr. Indrajeet Sinha, learned counsel appearing on behalf of the respondent, on the other hand, supported the impugned order and submitted that the Court can exercise its power under Section 39 if an application for execution of the decree is filed in that Court. For the purpose of exercising the said jurisdiction it is necessary that an application for execution is filed and pending before the Court. learned counsel referred to the provisions of Order XXI Pules 5 & 6 and submitted thai the Rules 5 & 6 are preceded by Rules 1, 2, 3 & 4 and the same are under the chapter of Execution and as such before an application lor execution is filed, the decree cannot be transferred to any other Court for execution.;