Calcutta High Court
Dalgreen Agro Private Limited vs Shaikh Asadur Rahman And Ors on 5 May, 2026
Author: Aniruddha Roy
Bench: Aniruddha Roy
In the High Court at Calcutta
Commercial Division
Original Side
Judgment (2)
PRESENT :
THE HON'BLE JUSTICE ANIRUDDHA ROY
IA NO. GA-COM/1/2025
In EC-COM/200/2025
DALGREEN AGRO PRIVATE LIMITED
Vs
SHAIKH ASADUR RAHMAN AND ORS
For the decree holder : Mr. Jayanta Sengupta, Adv.
Mr. Pratik Shanu, Adv.
For the judgment debtor Nos. 1 to 3 : Mr. Sarosij Dasgupta, Adv.
Ms. Saheli Bose, Adv.
For the judgment debtor No. 4 : Mr. Aurin Chakraborty, Adv.
Ms. Sanchayita De, Adv.
For the judgment debtor Nos. 6 & 7 : Mr. Rittick Chowdhury, Adv.
Mr. Ramij Munsi, Adv.
Mr. Sukrit Mukherjee, Adv.
Heard on : May 5, 2026
Judgment on : May 5, 2026
[In Court]
2
ANIRUDDHA ROY, J :
FACTS:
1. This is a proceeding for execution of a decree dated May 15, 2023
for a sum of USD 428500 equivalent to Rs.9,81,84,205/-
including interest, as decreed.
2. The instant application has been taken out by the judgment-
debtors 1 to 3 praying for dismissal of the execution proceeding.
3. Mr. Aurin Chakraborty, learned advocate (vc) appears for the
judgment-debtor No.4. He prays for leave to file a supplementary
affidavit to supplement the Affidavit of Assets filed by his client.
Such leave is granted. Affidavit of Assets shall be filed on or before
June 30, 2026.
4. The judgment-debtors 5 and 8 are not represented.
SUBMISSIONS:
5. Mr. Jayanta Sengupta, learned advocate appearing for the decree-
holder submits that warrant of arrest was issued against the
judgment-debtor No.5 and the judgment-debtor No.8 who are
beyond the territorial jurisdiction.
6. Mr. Sarosij Dasgupta, learned advocate appearing for the
judgment-debtors 1 to 3 submits that the said judgment-debtors
are the residents of Bangladesh. They carry on business in
Bangladesh. They do not have any asset or property within the
territory of India. The transactions by and between the parties
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carried out partly in India and partly in Bangladesh. In such
circumstance, Mr. Dasgupta has raised the issue of jurisdiction.
He submits that this Court in India does not have territorial
jurisdiction to execute the decree. To execute the decree, the
decree has to be sent for execution at the jurisdictional Court in
Bangladesh.
7. In support of his contention, Mr. Sarosij Dasgupta, learned
Advocate appearing for the judgment-debtors 1 to 3 has placed
the provisions under Section 38 and 39 of Code of Civil
Procedure, 1908 (herein, ‘CPC‘). Referring to those provisions, he
submits that a decree may be executed by the Court which passed
it or by the Court to which it is sent for execution, as laid down
under Section 38 of the Code of Civil Procedure. Section 39 of
CPC says 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, if the judgment debtor actually
and voluntarily resides or carries on business or personally works
for gain within the local limits of the jurisdiction of such other
Court.
8. Section 39 further provides that if such person has no property
within the local limits of 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, the decree
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may be sent for execution to such other competent Court. In the
instant case, the decree holder has not come up with the case in
this execution proceeding that the judgment-debtors 1 to 3 are
residing or carrying on business within the local limits of this
Court or that any property of the said judgment debtors are within
the local limits of this Court with which the decree can be satisfied.
Therefore, it is the obligation of this Court to transmit the decree
for execution at the competent Civil Court at Bangladesh where the
said judgment debtors are residing.
9. In support, he has relied upon the following decisions :
a) In the matter of : Smt. Uma Kanoria Vs. Pradip
Kumar Daga reported at AIR 2003 Cal 162;
b) In the matter of : Mohit Bhargava Vs. Bharat
Bhushan Bhargava and Others reported at (2007)
4 Supreme Court Cases 795.
10. Mr. Dasgupta further submits that Section 42 of CPC also
provides that the transferee Court which will execute the decree
would have the same authority and power to execute the
transferred decree, as if, transferee Court had passed it. Therefore,
if this decree is transmitted to the competent Civil Court at
Bangladesh, the same can be executed against the said judgment
debtors, in the same manner, as this executing Court can execute.
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11. In the light of the above submissions, Mr. Dasgupta prays for
dismissal of this execution proceeding and submits that no interim
order can be passed, as the main proceeding is not maintainable.
12. Mr. Jayanta Sengupta, learned Advocate, per contra, submits that
the provisions under Section 39 (1) of CPC should be applied at
the instance of the decree holder, when the decree holder applies,
whereas rest of the sub-sections shall depend on the discretion of
the executing Court and the Court has exclusive authority and
jurisdiction to exercise its power thereunder.
13. Mr. Jayanta Sengupta, learned Advocate appearing for the decree
holder further submits that, the judgment-debtor Nos. 1 to 3 had
filed their written statement but during the trial they chose not to
participate and the suit was decreed in their absence. The said
judgment debtors had not filed any application praying for setting
aside of the ex parte decree neither had preferred any appeal from
the said decree. The decree has now crystallized for a total sum of
Rs.9,81,84,205/- and the decree was passed in the equivalent
sum of USD.
14. To distinguish the judgment, In the matter of : Smt. Uma
Kanoria (supra), Mr. Sengupta submits that the Court did not
exercise the provisions under Order XXI Rule 41 of CPC i.e. the
examination of judgment debtor. He further submits to come to a
conclusive finding whether the judgment debtor has no property
within the local limits of this Court whether movable and
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immovable, to satisfy the decree, the provisions for examination of
the judgment debtor is required to be undertaken which is an
integral part of the execution process, within the authority and
jurisdiction of the executing Court. Therefore, in absence of such
conclusive finding, the ratio laid down in the said judgment would
not apply in the facts and circumstances of this case, as in the
instant case, that stage of examination of judgment debtors has
not yet arrived.
15. To distinguish the judgment In the matter of: Mohit Bhargava
(Supra), Mr. Sengupta submits that the judgment was rendered in
a partnership action and arose out of a preliminary decree where
both movable and immovable properties were the subject matter.
The judgment was not restricted only to the extent of a money
decree. There also the execution proceeding did not travel up to the
stage of examination of judgment debtors. The instant decree being
a money decree only, the ratio laid down in that judgment would
not apply in the facts and circumstances of this case.
16. Mr. Jayanta Sengupta, learned Advocate then submits that the
examination of judgment debtor is an integral part of execution
proceeding and unless that process is undertaken, the executing
Court cannot come to a conclusive finding whether any property
either movable or immovable of the judgment debtors is lying
within the local limits of the executing Court, which passed the
decree.
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17. In support, he has relied upon a decision of the Hon’ble Division
Bench In the Matter of: DVM Construction & Ors Vs. Srei
Infrastructure Finance Ltd. reported at AIR 2009 Cal 227.
18. In reply, Mr. Dasgupta, refers to the judgment In the matter
of: DVM Construction and Others and submits that this was not
a judgment rendered in the case of execution of decree but arose
from an arbitral award. There, the properties were found within the
local limits of the executing Court and hence, execution application
was filed. The enquiry under the provisions of examination of the
judgment debtor was already directed and thereafter, the
application was filed whereas in the instant case, examination of
the judgment debtor is not yet commenced. Therefore, the ratio in
this judgment is not applicable in the facts of this case.
19. He submits that the judgment In the matter of: Uma Kanoria
was passed at a stage where the examination of judgment debtor
was not allowed to be proceeded with.
DECISION:
20. After considering the rival contentions of the parties and on
perusal of the materials on record, it appears to this Court that the
judgment-debtors 1 to 3 had filed their written statement and then
did not participate in the trial. The decree was allowed to be
pronounced dated May 15, 2023 for a sum of Rs.9,81,84,205/-.
Admittedly, the judgment-debtors 1 to 3 did not file any
application for setting aside of ex parte decree neither preferred an
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appeal therefrom. The decree is, therefore, crystallized and has
attained its finality.
21. When the decree has been put into execution, judgment-debtor
Nos. 1 to 3 have come up with the instant application, praying for
dismissal of this execution proceeding on the ground of lack of
territorial jurisdiction of this Court.
22. In paragraph 18 to the execution application, the decree holder
specifically stated that judgment debtors have immovable
properties situated within the jurisdiction of this Court. The
said judgment debtors contend that this statement is not correct
and the judgment-debtors 1 to 3 have no property within the
territorial limit of this Court neither they reside or carry on
business within such jurisdiction.
23. On a meaningful reading of the provisions laid down under Order
XXI Rule 41 of CPC, it appears to this Court that the legislature
thought it fit to enact this provision to ascertain the details of the
properties and assets, whether movable or immovable of the
judgment debtors, upon a detailed enquiry being conducted by way
of trial on evidence before the Court so that, the Court cam come
to its final opinion with regard to the assets and properties of the
judgment debtor, whether it will satisfy the subject decree and this
enquiry naturally will include whether the assets and properties of
the judgment debtors are lying within the local limits of the
executing Court or not.
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24. The executing Court while exercising its jurisdiction for executing a
decree, the cardinal principle is it cannot travel beyond the decree.
However, the executing Court has enormous and ample authority
and jurisdiction, of course within the statutory framework, to
proceed against the judgment debtor with the sole aim to satisfy
the decree passed by the Court. It is the obligation of the executing
Court.
25. The Court that passed the decree, it is primarily responsible for its
execution. Section 38 works in tandem with Order XXI Rule 10
of CPC, which states that the decree holder must apply to the
Court that has passed the decree, for its execution. These are the
provisions engrafted under CPC for enforcement and execution of a
decree of Civil Court.
26. After conducting all possible enquiries within the statutory
framework, provided under CPC relating to execution of a decree, if
the Court ultimately finds and is satisfied that neither the
judgment debtor resides, carries on business within the local limits
of the executing Court nor does it have any property both movable
or immovable within the local limits of the executing Court, then
the executing Court shall transmit the decree before the competent
Court having jurisdiction where the judgment debtor is residing or
carrying on business or its properties are situated.
27. In the matter of: Smt. Uma Kanoria (supra), the execution
process did not reach at the stage of examination of judgment
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debtor. Unless, a conclusive finding is arrived at by the executing
Court, within the statutory framework under the provisions of
Order XXI of CPC, the executing Court should not take any step
to transmit the decree. Hence, the ratio laid down in the said
judgment would not apply in the facts and circumstances of this
case, more so, in view of the facts that even the judgment debtor
Nos. 1 to 3 though have filed written statement but avoided the
trial and allowed the decree to be crystallized, as already discussed
above. As such, the examination of the said judgment debtors are
essential.
28. In the matter of: Mohit Bhargava (supra), the judgment was
rendered in a partnership action, which was not restricted to a
money claim only. Therefore, the ratio laid down in the said
judgment would not apply in the facts and circumstances of this
case.
29. In the matter of: DVM Construction & Ors (supra), the law is
settled that to come to a conclusive conclusion whether the
judgment debtor stays or carries on business or that whether any
property of the judgment debtor is available within the territorial
jurisdiction of the executing Court, the Court must undertake all
the processes available for execution of decree.
30. In the facts of this case, the stage of examination of judgment-
debtor has not yet reached. This Court is of the firm and
considered view that unless that stage is reached and concluded,
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that is, the said judgment-debtors 1 to 3 are examined, it will not
be possible for this Court to arrive at a conclusive conclusion that
the judgment-debtors 1 to 3 do not reside within the territorial
limit of this Court or they have no property or asset to satisfy the
decree within the territorial limit of this Court. Only after arriving
at this conclusion, this Court can take a decision whether the
decree should be transmitted before a competent Court of
jurisdiction for execution.
31. Therefore, at this stage, this Court holds that this application is
not maintainable, devoid of any merit and must fail. However, the
point raised by the judgment-debtor Nos. 1 to 3 shall remain open
and can be considered, at the appropriate stage.
32. Now comes the conduct of the judgment-debtor Nos. 1 to 3. The
record shows that despite written statement having been filed by
them, they chose not to participate in the trial and allowed the
decree to be passed for a sum of Rs.9,81,84,205/- which was
equivalent to USD 428500. The said judgment-debtors neither
applied for setting aside of the decree nor preferred any appeal and
allowed the decree to be crystallized. At the execution stage the
said judgment-debtors filed the instant application questioning the
territorial jurisdiction of this Court but the said judgment-debtors
have not come up with any other plea with regard to their liability
to pay off the decretal dues neither they have denied. The attempt
of the executing Court shall always be to see that the decree
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passed by the Court is satisfied in accordance with law and the
decree should not be rendered infructuous and a paper decree. The
conduct of the judgment-debtor Nos. 1 to 3 clearly shows that the
judgment-debtors are interested to delay the adjudication of the
execution proceeding.
33. This Court is of the firm view that the judgment-debtor Nos. 1 to 3
must show their bona fide. Accordingly, the judgment-debtor Nos.
1 to 3 shall deposit a sum of Rs.9,81,84,205/- with the Registrar,
Original Side positively within six weeks from date to show their
bona fide.
34. In the event the deposit is made, the Registrar, Original Side
shall keep the sum in a fixed deposit account with the State Bank
of India, Kolkata High Court SPB Branch and shall prepare a
report and keep the same in the original execution file.
35. It is made clear that this deposit shall be without prejudice to the
rights and contentions of the judgment-debtor Nos. 1 to 3 in this
execution proceeding and the same shall not be treated as a
payment towards the satisfaction of the decree but to show bona
fide by the said judgment-debtors.
36. However, the judgment-debtor Nos. 1 to 3 shall file their Affidavits
of Assets by July 15, 2026. Copies shall be served upon the
learned Advocate on Record for the decree-holder.
37. The matter shall appear under the heading “Examination of
Judgment-debtor” in due course.
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38. With the above observations and directions, this application IA
NO. GA-COM/1/2025 stands dismissed.
(ANIRUDDHA ROY, J.)
sm/Sbghosh
IA NO. GA-COM/1/2025
In EC-COM/200/2025
A.R., J.
