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Report No. 144

3.3.2. Question for consideration.-

The section uses the word "may", and this has led to a controversy whether the court which passed the decree can itself execute the decree. In other words, does word "may" imply that sending the decree to another court (in the circumstances mentioned above) is discretionary?

3.3.3. The Bombay High Court has held1 that a court cannot execute a decree in which the subject-matter of the suit or application for execution is situated entirely outside its jurisdiction. Territorial jurisdiction is a condition precedent to a court executing a decree. Hence, the court cannot attach property outside its local jurisdiction. If it does so, and the decree is subsequently transferred to another court, a private purchaser who has purchased the property after attachment can challenge the legality of attachment, in appeal, for the first time. Once it is held that the attachment is void, it must cause failure of justice. However, the Rajasthan High Court has taken a different view.2-3 The Bombay judgment dissents from the Rajasthan view.

1. Sahaba Yeshwant Naik v. Vinod Kumar, AIR 1985 Born 79 (81, 83), paras. 11, 13 (DB).

2. Tarachand v. Misrimal, AIR 1970 Raj 53 (55, 57, 58), paras. 8, 12, 13, 14, 15, 20, 22 (DB) (paras. 14, 15 in particular).

3. Laxmi Narain v. Firm Ram Kumar Suraj Bux, AIR 1971 Raj 30 (Jagat Narayan, C.J. & Gattani, J.) (dissenting from Vasireddi Srimanthu v. B. Benkatappaya, AIR 1947 Mad 347.

3.3.4. It appears that in 1890, the Calcutta High Court had held that a court cannot execute a decree against property outside its jurisdiction.1

1. Premchand Day v. Nikhoda Deb, 1890 ILR 17 Cal 699 (FB).

3.3.5. But in 1982, the Calcutta High Court1 has held that the word "may" in section 39 is permissive. The court passing a decree can execute it, no matter that the suit property is not within its jurisdiction. The Calcutta High Court distinguished the following cases:

(i) 1912 ILR 39 Cal 104, and

(ii) AIR 1932 Cal 213.

It relied on the decision in AIR 1939 Cal 403.

1. Arati Rani Paul v. Balai Chandra Paul, AIR 1982 NOC 42 (Cal) (Monjula Bose, J.) .

3.3.6. According to the Kerala High Court also, the court which passed the decree can execute it by attaching property outside its jurisdiction.1

1. Chithraru v. Gopala, AIR 1967 Ker 81.

3.3.7. The Rajasthan High Court has also taken the view that the court which passed the decree can execute it directly even outside its jurisdiction.1-2

1. Laxmi Narain v. Firm Ram Kumar Suraj Bux, AIR 1971 Raj 30.

2. Tarachand v. Misrimal, AIR 1970 Raj 53.



Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back




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