CH. MUHAMMAD MASOOD JAHANGIR, J.--- By filing the instant appeal, the appellant has challenged the order dated 22.4.2013 passed by the learned Executing Court, whereby, an amount of Rs,27,64,626.65/- lying in Accounts being operated by the appellant in the Banks at Karachi has been ordered to be transferred to the Account of decree holder/respondent to satisfy the part of decree.
2. The facts of the case are that the respondent filed a suit for recovery of an amount of Rs,5189920/- under Order XXXVII rules 1 and 2, C.P.C. Before the learned District Judge, Faisalabad, which was partially decreed vide judgment and decree dated 19.2.2010 in favour of respondent/plaintiff to the tune of Rs,5189920/-. The said judgment and decree of the learned lower appellate court was assailed by the present appellant by filing RFA No,396/2010 before this Court, which was accepted and the decree dated 19.2.2010 was set aside and the suit filed by the respondent/plaintiff was remanded to the learned trial court. However, the suit was again decreed by the learned trial court vide judgment and decree dated 3.2.2011. Thereafter, the respondent/decree holder filed an execution petition before the learned Executing Court on 15.10.2012 and the learned Executing Court attached the Bank Accounts of the appellant/judgment debtor and thereafter vide impugned order dated 22.4.2013 the learned Executing Court has transferred the amount of Rs,27,64,626.65/-in the Account of decree holder. Being dissatisfied the instant appeal has been filed.
3. Learned counsel for the appellant/judgment debtor has argued. That some of the Accounts which have been attached by the learned Executing Court relate to the Banks situated at Karachi and fall out of the territorial jurisdiction of the learned Executing Court and that the impugned order for transfer of amount of the appellant lying in Banks Accounts at Karachi to the Bank Account of the decree holder at Faisalabad is without jurisdiction and the learned Executing Court while ignoring the provisions of law has passed the impugned order which being without lawful authority is liable to be set aside.
4. On the other hand, learned counsel for the respondent has frankly admitted that the amount of the judgment debtor was lying in the Banks Accounts situated at Karachi and the learned Executing Court vide impugned order has issued a direction for its transfer to the Bank Account of the decree holder lying in Bank at Faisalabad.
5. Arguments heard and record perused.
6. The part H ranging from Sections 36 to Section 74 lead with Order XXI, C.P.C. Deals with the execution of decree. Section 39 permits the transfer of decree for execution to another court and for ready reference, same is reproduced hereunder:-
39. Transfer of decree.--- (I) The Court which passed a decree may, on the application of the decree holder, send it for execution to another court,---
(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.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction."
7. Under Subsection (1) the transfer of decree may be made on an application of the decree holder, whilst Subsection (2) authorizes suo motu powers to an Executing Court to transfer the same to a court of competent jurisdiction. The term "competent jurisdiction" definitely refers to territorial and pecuniary jurisdiction to deal with the decree and not the competence of the Court to entertain the suit in which the decree was passed. The transferee court can exercise the same powers as possessed by a transferor court and Section 42, C.P.C. Deals with the said aspect, which is also reproduced hereunder for reference:-
42. Powers of Court executing transferred decree---
(1) 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. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner act if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
Without prejudice to the generality of the foregoing provision, the Court executing a decree sent to it shall have the following powers, namely:-- power under section 39 to transfer the decree to another Court, if necessary; power under subsection (I) of section 50 to permit execution to proceed against the legal representatives of a deceased judgment-debtor; power under section 152 to correct clerical or arithmetical errors; power under rule 16 of Order XXI to recognize the assignment of a decree; power under sub-rule (2) of rule 50 of Order XXI to grant leave to a decree-holder to proceed against a person not already recognized as a partner in a firm in an execution proceeding against the firm;
(f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of attachment of decree passed by another Court.] "
8. It is strange to observe that how an Executing Court possessing powers at Faisalabad could pass the order for attachment or transfer of amount lying in the Bank Accounts at Karachi, which was beyond its territorial jurisdiction. The proper procedure for the learned Executing Court was to issue a precept for the attachment of the property/Bank accounts of the judgment debtor to a court in whose territorial jurisdiction the same located in accordance with subsections (1) and (2) of Section 46 of C.P.C., which read as under:-- "46. Precepts.--- (I) Upon the application of the decree holder the Court which passed the decree may, whenever it thins fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree."
9. The analysis of above referred provisions makes it clear that if the judgment-debtor does not own property within the local limits/ territorial jurisdiction of the court passing the decree sufficient to satisfy the decree, the decree can be transferred to the court within the local limits of whose jurisdiction the judgment-debtor's other property is situated and the said transferee court can execute the decree against such property as is situated within its territorial limits, otherwise, no purpose' will be served by keeping execution petition pending in the court which had passed the same. The proper course for the court below was that it should have transferred the execution petition under Section 39 read with Order XXI, rule 6, C.P.C. To the court where the bank accounts of the judgment-debtor were lying or where the judgment-debtor was residing for the satisfaction of the decree.
10. There is no other provision of law according to which an Executing Court can attach or make an order for transfer of the amount lying in the Bank account falling outside its territorial jurisdiction.
The contention of the learned counsel for the respondent that decree passed in his favour will be frustrated if not satisfied is no ground to maintain wholly illegal and without jurisdiction order passed by the lower court. The courts are bound to follow the procedure prescribed by the law makers in the statutes and any deviation there-from will amount to declare the said order without jurisdiction.
11. Sequel of the above discussion is that the instant appeal is accepted and the impugned order passed by the learned Executing Court is set aside and the execution petition filed by the respondent will be deemed to be pending before the learned Executing Court, who will be at liberty to pass the appropriate orders afresh.