Calcutta High Court
Limited vs Mrs. Malathi Aiyer on 30 June, 2025
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
EC No.240 of 2022
CS No. 96 of 2015
Amrita Engineering And Trading Company Private
Limited
Vs.
Mrs. Malathi Aiyer
Before: The Hon'ble Justice Apurba Sinha Ray
For the Decree-holder : Ms. Reshmi Ghosh, Adv.
Mr. Altamash Alim, Adv.
Ms. Parna Mukherjee, Adv.
For the Judgment-debtor : Mr. Parashar Baidya, Adv.
Ms. Subhasree Patel, Adv.
Mr. Soham Banerjee, Adv.
CAV On : 17.06.2025
Judgment On : 30.06.2025
Apurba Sinha Ray, J. :-
1.
The instant execution petition has been filed by the decree-
holder for execution of an ex-parte decree dated 30.08.2019 of Rs.
78,07,890/- (Rupees Seventy Eight Lakh Seven Thousand Eight
Hundred and Ninety only) along with an interest @ 18% per annum
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from July 17, 2015. Subsequently, the judgment-debtor appeared in
this proceeding and submitted her affidavit-of-assets. The judgment-
debtor has also been examined by the learned counsel of the decree-
holder. The contention of the judgment-debtor is that not a single
immovable property is lying within the jurisdiction of this court and
further relevant bank accounts are also not within the jurisdiction of
this court. The learned counsel for the judgment-debtor has submitted
that this court has no jurisdiction to proceed with the instant
execution proceeding.
2. The learned counsel Ms. Ghosh appearing for the decree-holder,
has submitted that it is admitted by the judgment-debtor in this
proceeding that she has taken a sum of Rs. 60,00,000/- (Sixty Lacks
only) from the decree-holder for the purpose of paying EMIs for the flat
which she has purchased after approaching the decree-holder at its
office situate at 7A, Kiran Shankar Roy Road, 2nd Floor, Kolkata –
700001. The judgment-debtor has also admitted that prior to taking
the loan in the year 2013, she had a property in her name and also in
the name of her son. The address of such property is at 804, 7th Main
1st Cross Hal, II Stage, Bengaluru.
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3. The learned counsel has also drawn the attention of this court to
the relevant materials on record wherein the judgment-debtor has also
admitted that there was another premises being No. 67/3A, 4th Cross
Lavelle Road, Bengaluru, Pin – 560001. It is also alleged that the
judgment-debtor did not disclose in her affidavit-of-assets and
supplementary affidavit the sale proceeds received by her after sale of
the apartment measuring about 1365 sq.ft. super built up area at
67/3A, 4th Cross Lavelle Road, Bengaluru, Pin – 560001 along with a
vacant land measuring 4100 sq.ft. in Bengaluru municipal area.
According to Ms. Ghosh, an affidavit-of-assets is a procedural step to
be followed in an execution application whereby all the assets of the
judgment-debtor is to be disclosed before the Hon’ble Court both
moveable and immoveable in nature. However, the judgment-debtor
did not disclose the tax return filed by her in the last financial year
concerning the sale of her property.
4. It is alleged by the decree-holder that by selling the apartment at
67/3A, 4th Cross Lavelle Road, Bengaluru, Pin – 560001 for Rs. 1.25
Crore she had got sufficient money to satisfy the decree but the
judgment-debtor had not only evaded to pay the decretal amount along
with interest but she intentionally did not disclose the sale details,
bank details, tax filing details in her affidavit-of-assets. The affidavit-
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of-assets and the supplementary affidavit filed by the judgment-debtor
were filed in a very casual manner. The suit was filed in the year 2015
and the sale took place in the year 2017 when she was fully aware that
payment had to be made to the decree-holder. It also appears from the
supplementary affidavit filed by the judgment-debtor that she has
disclosed the reference of such an account where there is no money.
5. The learned counsel further submitted that the decree-holder in
accordance with the provisions of the Code of Civil Procedure, 1908
and the Original Side Rules, 1925 of the Hon’ble High Court at
Calcutta, had filed the execution application to execute the decree
dated August 30, 2019. During the hearing of the execution case being
EC No. 240 of 2022 the judgment-debtor has taken the objection to
the jurisdiction of this Hon’ble Court to execute the decree. The
judgment-debtor has relied upon the judgments reported in AIR 2016
Cal 293 (Srei Equipment and Finance Private Limited Vs. Khoyada
Apik & Ors.). According to Ms. Ghosh, the said judgment, in fact,
supports the decree-holder’s case. It is also contended that when
execution is sought against moveable property, the question of transfer
of decree or award cannot arise since the location of moveable property
cannot be determined with certainty and same may be moved by the
judgment-debtor from jurisdiction to jurisdiction. Furthermore, in an
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age of computerization, bank accounts are not necessarily operated at
a single branch. Net banking enables a customer of a bank to transfer
funds from any place. So, according to the decree-holder, the objection
regarding transfer is irrelevant and such judgment is also inapplicable
in view of the fact that this Hon’ble High Court at Calcutta is a
Chartered High Court and in its ordinary original civil jurisdiction has
evolved its own procedure and practice to execute in connection with
property situated outside the territorial limit. It is further contended
that the rule making power of the Chartered High Court originated
from clause 37 of the Letters of Patent, 1865 read with Section 108 of
the Government of India Act, 1915 and this power of this court given
by two legislations is unique and it stands on a different footing on
other High Courts. Moreover, Section 39 of the Code of Civil Procedure,
1908 cannot take away the power of this Hon’ble Court. In this regard,
he has drawn the attention of this court to the judicial decision in the
Salem Advocate Bar Association case reported in AIR 2005 SC
3353 (paragraph 25). It is also contended that the Original Side Rules,
1925 which was framed under clause 37 of the Letters of Patent, 1865
read with Section 108 of Government of India Act, 1935 and Article
225 of the Constitution of India has got the effect of Supreme Court
legislation and it being a special law obviously override the general law
of procedure being Code of Civil Procedure, 1908. The practice and
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procedure followed by the Hon’ble High Court at Calcutta for a long
time also partakes the character of the law by virtue of Rule 3 of
Chapter XL of the Original Side Rule, 1925. This practice and
procedure adopted by Rule 3 of Chapter XL of the Original Side Rules,
1925 cannot be taken away and/or curtailed by sub-section (4) of the
Section 39 of the Code of Civil Procedure, 1908. Moreover, sub-section
(4) has to be read in the context of the parent provision of Section 39 of
the Code of Civil Procedure, 1908. The power of execution is primarily
derived from Section 38 of the Code of Civil Procedure, 1908 and
therefore Section 38 and 39 of the Code of Civil Procedure, 1908 has to
be read conjointly and given an objective meaning.
6. Ms. Ghosh has further contended that the word “shall”
mentioned in sub-section (4) of Section 39 of the Code, is not intended
to mean as being mandatory for it cannot be read inconsistently with
the Sub-section (1) of Section 39 of the Code of Civil Procedure, 1908.
It is the discretion of the Court either to execute by itself or to send it.
But the legislature has provided that in case of a situation as
mentioned under sub-section (4) of Section 39 of the Code of Civil
Procedure, 1908 the court which has passed the decree will not
ordinarily execute by itself if it is found that the execution is possible
legally and conveniently if the decree is sent to the appropriate court
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within whose jurisdiction the property situates and/or the person
resides.
7. According to Ms. Ghosh the same does not mean that the court’s
discretionary power can be curtailed. Moreover, if the provision is read
as being mandatory then unscrupulous judgment debtor who is
sought to be executed will go on changing his place of residence
locating within the jurisdiction of transferee court and in that case
each occasion of change of residence will give rise to fresh order of
transfer by the court successively. It is an inconceivable idea that the
process of execution will run after judgment-debtor all the time.
8. It is evident from the materials on record that the judgment-
debtor after passing of the decree has dealt with one of her immovable
properties and has appropriated the sale proceeds without paying the
decretal sum of the decree-holder and the same act does not inspire
confidence, and as such, in view of innumerable pronouncement
regarding expeditious disposal of the execution proceedings, the
instant execution proceeding being EC No. 240 of 2022 is required to
be disposed of by realizing the decretal sums from the judgment-
debtor by taking coercive steps including police action.
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9. Judgment-debtor’s learned counsel Mr. Baidya, after challenging
the instant execution proceeding, has submitted that this court does
not have the jurisdiction in view of the explicit bar imposed under
Section 39(4) of the Code of Civil Procedure, 1908. In this regard, he
has relied upon the judicial decisions of Nasiruddin and Ors. Vs. Sita
Ram Agarwal reported in (2003) 2 SCC 577, Nathi Devi Vs. Radha
Devi Gupta reported in (2005) 2 SCC 271, Haridas Basu Vs.
National Insurance Company Limited reported in AIR 1932 Cal
213, Delhi Cloth & General Mill Co. Ltd. Vs. Ramjidas Shriram and
Ors. reported in 1981 SCC OnLine Cal 141, AIR 1982 Cal 34,
Mechano Paper Machines Ltd. Vs. NEPC Papers & Boards Ltd. &
Ors. reported in AIR 2012 Cal 26, Mohit Bhargava Vs. Bharat
Bhushan Bhargava & Ors. reported in 2007 4 SCC 795. By citing
those judgments Mr. Baidya has vehemently submitted that Section 38
of the Code provides that a decree may be executed either by the court
which passed it or by the court to which it is sent for execution.
Section 42 of the Code indicates that the transferee court to which the
decree is transferred for execution will have the same powers in
executing that decree as if it had been passed by itself. A decree could
be executed by the court which passed the decree so long it is confined
to the assets within its own jurisdiction or as authorized by Order 21
Rule 3 or rule 48 of the Code or the judgment-debtor is within its
9
jurisdiction, if it is a decree for personal obedience by the judgment-
debtor. But when the property sought to be proceeded against, is
outside the jurisdiction of the court which passed the decree acting as
the executing court, there was a conflict of views earlier, some courts
taking the view that the court which passed the decree and which is
approached for execution of the decree cannot proceed with execution
but could only transmit the decree to the court having jurisdiction over
the property and some other courts taking the view that it is a matter
of discretion for the executing court and it could either proceed with
the execution or send the decree for execution to another court. But
this conflict was set at rest by Amendment Act 22 of 2022 with effect
from 01.07.2002, by adopting the position that if the 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 authorize the court to
proceed with the execution. In the light of this, Mr. Baidya argues, it
may not be possible to accept the contention that it is a matter of
discretion for the court either to proceed with the execution of the
decree or to transfer it for executing to the court within the jurisdiction
of which the property is situated.
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10. Mr. Baidya, has further submitted that the judgment relied upon
by the decree-holder in support of their case i.e. Birla Corporation
Ltd. Vs. Prasad Trading Company & Anr. reported in AIR 2007 Cal
38 has already been overruled by the Hon’ble Division Bench of this
court in Mechano Paper Machines Ltd. Vs. NEPC Papers & Boards
Ltd. & Ors. reported in AIR 2012 Cal 26. Furthermore, the judicial
decision in Srei Equipment and Finance Pvt. Ltd. (supra) submitted
by the decree-holder is factually distinguishable on the point that the
said judgment has been passed in respect of execution case related to
an arbitral award and not in reference to a decree passed in a suit. The
judgment was decided under section 42 of Arbitration and Conciliation
Act, 1996 and the said judgment clearly speaks that an arbitral award
cannot be construed as a decree, or as an order for the purpose of
Section 38 and 39 of the Code of Civil Procedure, 1908 (paragraph 18).
11. Mr. Baidya has further submitted that by order dated
08.03.2024 this court refused to pass an order of injunction on the
ground that admittedly the immoveable property of the judgment-
debtor situates outside the jurisdiction of this court. The right of the
petitioner in respect of immovable property situated at 804, 7th Main
1st Cross, Hal II Stage, Bengaluru – 560 038 has not been crystalized
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since an expectancy of succession by survivorship or other merely
contingent or possible right or interest shall not be attached for sale.
12. Mr. Baidya has also submitted that the execution application is
defective. Furthermore, the decree-holder did not disclose that during
the pendency of the suit Rs. 10,00,000/- (ten lakhs only) has been
repaid by the judgment-debtor on 22.08.2016 and such suppression
amounts to fraud upon the court and vitiates everything.
13. I have considered the materials on record including the affidavit-
of-assets and the relevant examination of the judgment-debtor at the
instance of the learned counsel of the decree-holder. It appears that
there is an admission on the part of the judgment-debtor regarding her
liability to pay. However, after going through the examination and
affidavit-of-assets, I find that the decree-holder is unable to show
either any immovable or movable property is lying within the
jurisdiction of this court.
14. After amendment of Section 39 of the Code of Civil Procedure,
1908 stands as follows:-
39. Transfer of decree.- (1) The Court
which passed a decree may, on the
application of the decree-holder, send it for
12execution to another Court of competent
jurisdiction –
(a) if the person against whom the decree
is passed actually and voluntarily resides
or carries on business, or personally works
for gain, within the local limits of the
jurisdiction of such other Court, or
(b) if such person has no property within
the local limits of the jurisdiction of the
Court which passed the decree sufficient
to satisfy such decree and has property
within the local limits of the jurisdiction of
such other Court, or
(c) if the decree directs the sale or delivery
of immovable property situate outside the
local limits of the jurisdiction of the Court
which passed it, or
(d) if the Court which passed the decree
considers for any other reason, which it
shall record in writing, that the decree
should be executed by such other Court.
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(2) The Court which passed a decree may of its
own motion send it for execution to any
subordinate Court of competent jurisdiction.
(3) For the purposes of this section, a Court
shall be deemed to be a Court of competent
jurisdiction if, at the time of making the
application for the transfer of decree to it, such
Court would have jurisdiction to try the suit in
which such decree was passed.
(4) Nothing in this section shall be deemed to
authorise the Court which passed a decree to
execute such decree against any person or
property outside the local limits of its
jurisdiction.”
15. Section 39(1) deals with the procedure when on the application
of the decree-holder the court can send the decree for execution to
another court of competent jurisdiction. Further Section 39(2) deals
with the situation when the court which passed a decree may of its
own motion send it for execution to any subordinate court of
competent jurisdiction. But Section 39(4) has clearly laid down that
the provisions in Section 39 does not authorize the court which passed
14a decree to execute such decree against any person or property outside
the local limits of its jurisdiction. However, the instant case does not
fall under order XXI rule 3 or order under XXI rule 48 of the Code
which has laid down a different procedure where lands are situated in
more than one jurisdiction and where the question of attachment of
salary or allowances of the servant of the government or of a servant of
a railway company or local authority is involved. Now, the question is
whether the Original Side Rules has any overriding effect over Section
39(4) of the Code of Civil Procedure, 1908 or not.
16. Needless to mention, the case law reported in AIR 2007 Cal 38
Birla Corporation Limited Vs. Prasad Training Company & Anr.
does not find favour in the judicial decision reported in AIR 2012 Cal
26 by the Mechano Paper Machines Ltd. (supra) passed by a Hon’ble
Division Bench of this Court. However, the Hon’ble Division Bench has
been pleased to observe :-
“In our opinion, the moment sub-section (4)
of Section 39 has been incorporated which
is couched in a negative form, there is no
trace of doubt that the said provision is
mandatory in nature subject to Order 21
Rules 3 and 48 as pointed out by the
Supreme Court in the case of Salem Bar
Association (supra). With great respect to
15His Lordship we do not approve the view
taken in the case of Birla Corporation Ltd.
(supra).
On consideration of the entire materials on
record, we find that the learned Single
Judge acted without jurisdiction in
appointing a Receiver over a property
situated beyond the territorial limits of the
Court for the purpose of execution of a
money decree and as such, we set aside
the order impugned.”
17. Therefore, it is not correct that Original Side Rules of the High
Court at Calcutta are to be given preference over the Code of Civil
Procedure. In this regard Rule 37 of Letters of Patent, 1865 may be
quoted as hereunder:-
“37. Regulation of proceedings.- And
We do further ordain, that it shall be
lawful for the said High Court of
Judicature at Fort William in Bengal from
time to time to make rules and order for
the purpose of regulating all proceedings in
civil cases which may be brought before
the said High Court, including proceedings
in its Admiralty, Vice-Admiralty,
Testamentary, Intestate, and Matrimonial
jurisdictions respectively Provided always,
16that the said High Court shall be guided in
making such rules and orders, as far as
possible, by the provisions of the Code of
Civil Procedure, being an Act passed by
the Governor-General in Council, and being
Act No. VIII of 1859, and the provisions of
any law which has been made, amending
or altering the same, by competent
legislative authority for India.”
18. From the above, it is transpired that there is a mandate that the
Hon’ble High Court should be guided in making rules and orders
regulating proceedings, as far as possible, by the provisions of the
Code of Civil Procedure and the provision of any law which has been
made, amending or altering the same, by competent legislative
authority for India. If that be so, as the Code of Civil Procedure is an
enactment of the Indian Parliament, I think the overriding effect of
Code of Civil Procedure over the Original Side Rules has already been
recognized in Rule 37 of the Letters of Patent, 1865. Therefore, when
sub-section (4) of Section 39 of the Code specifically discourages the
court passing a decree from executing such decree against any person
or property outside the local limits of its jurisdiction, Rule 37 of Letters
of Patent, 1865 of the Hon’ble High Court at Calcutta is to be
construed accordingly, and thus, I find that this court is not
authorized to execute the relevant decree against the judgment-debtor
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who is residing outside the State and her properties which are also
lying outside the local limits of its jurisdiction and therefore, the
prayer for executing the relevant decree cannot be proceeded with in
this court for want of jurisdiction. However, from the materials on
record and also the affidavit of assets filed by the judgment-debtor it
appears that she has properties in the State of Karnataka and further,
as this court has power to send the decree on its own motion for
execution to any court of competent jurisdiction under sub-section (2)
of Section 39 of the Code, I think that the relevant decree should be
sent to the court of competent jurisdiction for its execution. The record
shows that the petitioner has properties at 804, 7th Main 1st Cross, Hal
II Stage, Bengaluru – 560 038 which is within Bengaluru district,
Karnataka.
19. The relevant decree dated 30.08.2019 passed in CS No. 196 of
2015 be sent to the Learned Chief Judge, City Civil Court at Bengaluru
for execution of the decree by the said court itself or by a competent
court having jurisdiction to execute such decree as would be
nominated by the Learned Chief Judge, City Civil Court, Bengaluru in
accordance with law and relevant rules.
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20. However, the time spent in proceedings with EC No. 240 of 2022
in this court will be excluded under Section 14 of Limitation Act. The
Learned Registrar, Original Side High Court at Calcutta is requested to
send the decree along with connected papers to the concerned court as
mentioned above immediately for execution along with a copy of this
order.
21. Without touching the merits of the case, EC No. 240 of 2022 is
disposed of only on the ground that this court lacks jurisdiction. No
order as to costs. Interim order, if any stands vacated.
22. Copies of this Judgment, if applied for, be supplied to the
parties on compliance of all necessary formalities.
(APURBA SINHA RAY, J.)