2000 PLP 1312 (MLD)

Hamza I. Ali. Amicus curiae. The question posed for consideration is if the Execution Application can be maintained for attachment and sale of property which is situated wholly outside the territorial jurisdiction of this Court. The above question arises out of the general rule, contained in section 39, C.P.C., to the effect that in the event of judgment‑debtor not owning any property within the local limits of the jurisdiction of the Court which passed the decree, the decree has to be sent for execution to the Court possessed of territorial jurisdiction over the property belonging to the Judgment‑debtor. In order to resolve the controversy, Mr. Hamza I. Ali was called upon to assist the Court through order, dated 30th August, 1999. Mr. Hamza I. Ali has contended that the general rule of jurisdiction, stated above, has certain exceptions which find mention in the commentary on the Code of Civil Procedure by D.V. Chitaley, Volume‑I at pages 669 to 671 (VIIth Edition). Apart from such exceptions, which include the power of Court to appoint Receiver under section 51(d), C.P.C., it is urged that the Court can validity, order execution of decree for attachment and sale of mortgaged property even if it is situate outside its territorial jurisdiction. A mortgage decree, according to the learned counsel by its own force, requires attachment and sale of the property and has to be equated with a decree for specific performance, hence capable of execution notwithstanding the limits of territorial jurisdiction. The learned amicus curriae, in support of his submissions, has referred to a large number of judgments from across the border and one judgment by the Lahore High Court. The following judgments were cited by Mr. Hamza Ali:‑

1. Tincouri Debya v. Shib Chandra Pal Chowdhury and others ILR 21 Calcutta 639.

2. Shaikh Abdul Hadi v. Mt. Kabultunnissa AIR 1925 Patna 139.

3. Rajagopala Pandarathar and another v. Tirpathia Pillai and another AIR 1926 Madras 421.

4. Girdhari Lal v. Pars Ram and another AIR 1933 Lah.

687. All the afore‑cited judgments hold that mortgage decree can be executed by the Courts passing such decree notwithstanding the location of mortgaged property outside the territorial jurisdiction of the Court. The logic for holding such position is evident and order for sale of mortgaged property is implicit in the decree. Applying such test to the present matter, it is found that the mortgage was executed within the territorial jurisdiction of this Court; that mortgagee holds the documents of title pertaining to the mortgaged property, and, this Court can, effectively, execute the decree. The transfer of decree for issuance of precept, too, may not prove effective. The inventory of the mortgaged property, for the said reason, was prepared by the Official Assignee of Karachi. It shall, however, be open to the decree holder to apply for transfer of the decree for attachment and sale of movable properties at a subsequent stage in case the decree cannot be satisfied fully through sale of the mortgaged property. The Execution Application, having been found maintainable, let its notice be issued to the judgment‑debtors. Before parting I must record my appreciation for the assistance rendered by the learned amicus curriae. Q.M.H./M.A.K./P‑7/K Order accordingly.