Monday, 25 December 2017

What are exception to rule that court can not execute decree beyond its jurisdiction?

22. Section 39(1) of the Code provides that the Court which passed a decree may, on the application of the decree-holder send it for execution to another court of competent jurisdiction. By Act 22 of 2002, Section 39(4) has been inserted providing that nothing in the 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. The question is whether this newly added provision prohibits the executing court from executing a decree against a person or property outside its jurisdiction and whether this provision overrides Order XXI Rule 3 and Order XXI Rule 48 or whether these provisions continue to be an exception to Section 39(4) as was the legal position before the amendment.

23. Order XXI Rule 3 provides that where Immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more courts, any one of such courts may attach and sell the entire estate or tenure. Likewise, under Order XXI Rule 48, attachment of salary of a Government servant, Railway servant or servant of local authority can be made by the court whether, the judgment-debtor or the disbursing officer is or is not within the local limits of the court's jurisdiction.

24. Section 39 does not authorise the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance of conditions stipulated in those provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which provide differently, would not be effected by Section 39(4) of the Code.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) Nos. 496 and 570 of 2002

Decided On: 02.08.2005

Salem Advocate Bar Association, Tamil Nadu
Vs.
Union of India (UOI)
Hon'ble Judges/Coram:

Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee, JJ.
Citation: AIR 2005 SC 3353.




Read full judgment here: Click here

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