MOJIBUNISA BIBI Vs. KADIR BUX

JUDGEMENT

(1.) This is a decree-holders' appeal. The facts are as follows : In a suit for recovery of Rs. 4,500, a decree for Rs. 4,500 with costs amounting to Rs. 487 and interest at 6 per cent. per annum was passed on 21-2-1938,. against the respondent. On 10-2-1940, the decree-holders applied for execution of the decree in-the Court of the City Munsif, Jaunpur. The prayer made in the application was that the decree may be transferred to the Court of Small Causes at Calcutta for execution by that Court, On 18-2-1841, an order for transfer was made. The execution application was, however, struck off by the Calcutta Court on 18 4-1941, and the proceedings were struck off by the City Munsif on 18-3-1943.

(2.) Then, on 14-8-1944, a second application for execution was made. This application was filed in the Court of the Civil Judge, Jaunpur probably because the City Munsif ceased to have jurisdiction with regard to the matter. In this application also a prayer for transfer of the decree for execution by the Small Cause Court at Calcutta was made. The decree was transferred to that Court by an order dated 30-8-1944, The Calcutta Court attached certain immovable properties. The judgment-debtor filed a0 objection in that Court urging that the Court had no jurisdiction to execute the decree inasmuch as its value was beyond the pecuniary limits of the jurisdiction of that Court. The Registrar of the Court overruled this objection on the ground that it was not the function of the transferee Court to question the order of transfer. Then the judgment-debtor filed an objection in the Court of the Civil Judge, Jaunpur, on 27-7-1945, and the main point taken on his behalf was that the second execution application was barred by limitation because the first execution application was not in accordance with law inasmuch as a prayer was made in it for transfer of the decree to a Court which had no jurisdiction to execute the decree. This objection was dismissed by the Civil Judge. On appeal, however, the objection was accepted and the execution application was dismissed as time barred.

(3.) Two points have been urged before us by counsel for the decree-holders. It has been contended that the Civil Judge had no jurisdiction to entertain the objection of the judgment-debtor when the same objection had been dismissed fey the Presidency Small Cause Court at Calcutta, This objection has no force. As stated above, the Registrar of the Small Cause Court at Calcutta rejected the judgment-debtor's objection on Abe ground that he had no jurisdiction to entertain it. He, therefore, did not decide it on the merits. Further, it is the judgment-debtor's contention that the Small Cause Court, Calcutta, had no jurisdiction to execute the decree. If it had no jurisdiction to do so, its order dismissing the judgment-debtor's objection would also be without jurisdiction and would be a nullity. By the transfer of the decree, the transferring Court did not cease to have jurisdiction in a matter like this when the objection related to the transfer of the decree to the transferee Court.