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Sri Oswal Traders Vs. Shri Mahila Griha Udyod Lijjat Papad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberEx. Appln. No. 64 of 1983 (in Madras Civil Suit No. 5 of 1979)
Judge
Reported inAIR1983Bom484
ActsCode of Civil Procedure (CPC), 1908 - Sections 42 - Order 21, Rule 26
AppellantSri Oswal Traders
RespondentShri Mahila Griha Udyod Lijjat Papad
Appellant AdvocateDeputy Sheriff of Bombay, Party in person;Jodhavar and;B.H. Rathod, Advs.
Respondent AdvocateM.J. Devani and;A.P. Roy, Advs.
Excerpt:
the case dealt with the decree that was transferred to bombay high court for execution - it was adjudged that the orders obtained from the court which passed the decree must be filed in the high court - further, the sheriff's office should not act directly on the basis of such powers. - - the court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution, or where the former court fails to execute the same, circumstances attending such failure......the sheriff of bombay and the attachment was raised.2. this is not the correct practice. once the decree is transferred for execution to another court, that court is required to act in connection with the execution of the decree as if that decree were a decree of the transferee court. under section 39 of the civil p. c. a court which passes a decree can send it for execution to another court as prescribed in that section. under s. 40 of the civil p. c., a decree so transferred can be executed in such manner as may be prescribed by the rules in force in the state of the transferee court. under section 41 of the civil p. c. the court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution, or where the former court fails to execute the.....
Judgment:
ORDER

1. In the present case the decree passed by the Madras High Court in Civil Suit No. 5 of 1979 has been transferred to this Court for execution. It seems that after the attachment was levied through this High Court an order has been obtained by the judgment-debtor from the Madras High Court on 23rd June, 1983 raising the attachment. This order was directly filed by the advocate of the judgment-debtor in the Office of the Sheriff of Bombay and the attachment was raised.

2. This is not the correct practice. Once the decree is transferred for execution to another Court, that Court is required to act in connection with the execution of the decree as if that decree were a decree of the transferee Court. Under Section 39 of the Civil P. C. a Court which passes a decree can send it for execution to another Court as prescribed in that section. Under S. 40 of the Civil P. C., a decree so transferred can be executed in such manner as may be prescribed by the rules in force in the State of the transferee Court. Under Section 41 of the Civil P. C. the Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same, circumstances attending such failure. Under Section 42 the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. In other words, the Court to which a decree is transferred for execution is for the purpose, the same position as the Court which passed the decree and the Court to which the decree is sent for execution must certify the fact of execution to the Court which passed the decree. Thus, all proceedings relating to execution have to be taken through the transferee Court.

3. Under Order XXI, Rule 26 of the Civil P. C., the Court to which a decree has been sent for execution shall stay the execution for a reasonable time to enable the judgment-debtor to apply to the Court by which the decree was passed for an order to stay execution, or for any other order relating to the decree or execution. In the present case the judgment-debtor obtained an order from the Madras High Court raising the attachment. That order was not communicated tot his High Court at all although the decree had been transferred to this Court for execution and the attachment has been levied under the process of this High Court. Instead, the advocate for the judgment-debtor directly field a certified copy of the order of the Madras High Court in the Officer of the Sheriff of Bombay and got the attachment raised without even conveying to the Court the order so obtained. In so doing the Office of the Sheriff of Bombay acted without any process being issued by this Court for raising attachment. This cannot be done because this Court alone is responsible for certifying to the original Court the steps taken by it for executing the decree.

4. It was pointed out to me that under Rule 466 of the High Court Rules (O. S.) the Sheriff can withdraw the attachment levied on the written request of the judgment-creditor or his advocate on record. This rule merely enables a judgment-debtor obtains an order of the Court raising attachment. All orders obtained from the Court which passed the decree in relation to execution must be first field in this Court when such a decree has been transferred to this Court for execution. The Sheriff's Office should not act directly on the basis of the orders passed by the Court which has transferred the decree this Court for execution. It can act on such orders after the process is issued by this Court pursuant to such orders. Learned Advocate for the judgment-debtor has apologised for the mistake committed by him and he undertakes to file within two weeks a certified copy of the order of the Madras High Court in this Court along with an affidavit setting out the circumstances in which the attachment was raised.

5. In view of this undertaking, there will be no further order. Since the attachment has been raised in view of the order of the Madras High Court to that effect, there is no need in the circumstances of this case to again attach the property.

6. Copy of the Order to be sent to the Officer of the Sheriff of Bombay .

7. Order accordingly.


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