Remanded

Nandakumar v. New Millianium Kuries (P) Ltd.

Kerala HC16 Oct 2018OP(C)/105/2015

Case brief

AI extract

What is this about?

Holding that an execution court lacks jurisdiction when the judgment debtor resides outside its local limits under Section 39(4) CPC. The High Court set aside the lower court's order which incorrectly relied on Section 37 CPC and remanded the matter for a proper order as per law.

What did the court decide?

The impugned order dismissing the objection was set aside and the matter was remanded to the Execution Court to pass a proper order in accordance with the law.

Nandakumar Vs New Millianium Kuries (P) Ltd. — Execution and Attachment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940

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OP(C).No. 105 of 2015

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AGAINST THE ORDER IN E.P.No.90/2014 IN OS 614/2005 of II ADDL.SUB COURT,THRISSUR, DATED 29-11-2014

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PETITIONER/IST JUDGMENT DEBTOR:

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NANDAKUMAR, AGED 38 YEARS, S/O ALAKKAL SAHADEVAN, NATTIKA VILLAGE, NATTIKA DESOM, CHAVAKKAD TALUK.

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BY ADV. SRI.P.K.SAJEEV

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RESPONDENT/DECREE HOLDER: NEW MILLIANIUM KURIES (P) LTD., THRISSUR - 1.

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BY ADV. SRI.ROBSON PAUL

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C) No.105 of 2015

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JUDGMENT

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Against the order passed in E.P.No.90/2014 in O.S.No.614/2005, dated 29.11.2014, the respondent/first judgment debtor came up with this original petition under Article 227 of the Constitution of India. The impugned order was passed in single line as follows:

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“Heard. It is seen that this court has jurisdiction in view of Section 37 CPC. For proving means. Call on 15.01.15.”

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The contention raised by the first defendant/first judgment

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debtor is that he is residing outside the jurisdiction of Sub Court, Chavakkad, and in view of the embargo under Section 39(4) CPC, it is not proper to execute the decree by that Court. Sub section (4) of Section 39 CPC is a clear embargo in exercising the jurisdiction by an Execution Court over any person or property stands outside the local limits of that Court. A proceeding under Order XXI Rule 37 CPC is really part of execution of a decree and as such the proper remedy available to the party is to effect transfer of a decree in accordance with Sections 39 and 46 CPC so as to enable the party to execute the decree as against the first judgment debtor who is residing permanently outside the jurisdiction of the Court which passed the decree. It was also submitted by the learned counsel for the petitioner/decree holder that the suit was instituted before Sub Court, Thrissur, in the year 2005 and a decree was passed on 23.10.2007. Subsequently, certain areas from the jurisdiction

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O.P.(C) No.105 of 2015

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of Sub Court, Thrissur, were bifurcated and brought under a newly constituted Sub Court at Chavakkad. So, the E.P. was filed in that Court. As discussed earlier, compliance of Section 39 CPC is required when the person is permanently residing outside the purview of the jurisdiction of an Execution Court which passed the decree and hence the order passed by the learned Sub Judge does not satisfy the proper application of law in force. Section 37 CPC only deals with definition of a Court which passed the decree. In any view of the matter, consideration of Section 37 CPC alone in the matter, ignoring the other provisions - Sections 39 and 46, governing the field is not permissible. A bare dismissal of the application, without discussing the legal provisions, on factual basis is also not at all permissible and hence the same has to be set aside by exercising the jurisdiction under Article 227 of the Constitution of India and I do so. The matter is remanded back to the Execution Court for passing a proper order in accordance with the law in force.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

O.P.(C) No.105 of 2015

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF EXECUTION PETITION IN E.P.90/2014 IN O.S.614/2005 ON THE FILES OF II ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P2 TRUE COPY OF OBJECTION E.P.90/2014 IN O.S.614/2005 ON THE FILES OF II ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P3 TRUE COPY OF ORDER DATED 29.11.2014 IN E.P.90/2014 IN O.S.614/2005 ON THE FILES OF II ADDITIONAL SUB COURT, THRISSUR. RESPONDENT'S EXHIBIT NIL.

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// TRUE COPY //

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P.A. TO JUDGE

Nandakumar v. New Millianium Kuries (P) Ltd.

Case brief

What is this about?

What did the court decide?

Nandakumar v. New Millianium Kuries (P) Ltd.

Case brief

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What did the court decide?

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