PARSOTTAM PASI Vs. PT RAJ NARAIN SHARMA

JUDGEMENT

(1.) This is a judgment-debtor's appeal. The decree-holder obtained a money decree on 10-7-42 from the Judge, Small Cause Court, Banaras. He applied for transmission of the decree under Section 39 of the Code of Civil Procedure to the Judge Section C. Court, Banaras. The decree was transmitted to the Munsif of Hawaii by the Judge, Small Cause Court. An application for execution of the transmitted decree was made by the decree-holder on the 21st of January 1946 to the Munsif, Hawaii execution being sought against land. The land being a protected land within the meaning of U. P. Regulation of Agricultural Credit Act (XIV of 1940) the Munsif, Hawaii, transferred the execution of the decree to the Collector. Having transferred the decree he dismissed the application by his order dated the 8th March 1946. It appears that the decree-holder took no steps before the Collector. On 7-3-49 he moved an application before the Judge, Small Cause Court for a fresh transmission of the decree. This application was dismissed by the Judge, Small Cause Court on the 19th of April 1949 on the ground that the Court to which the decree had been sent for execution had not certified back to him the fact of execution or non-execution. On 16-8-'50 another application was made before the Judge, Small Cause Court, Banaras fpr transmission of the decree. This application was again dismissed upon the previous ground. A certificate of non-satisfaction was at last sent by the Munsif of Hawali and then on the 4th September, 1953, the decree-holder made an application for a fresh transmission of the decree to the Judge, S.C.C. Banaras. The Judge gave a certificate of non-satisfaction and transferred the decree to the Munsif, Hawali. There an application for execution was made on 9-1-'54 by the decree-holder. The judgment-debtor then took an objection that the execution application was time-barred. The ground of the objection was that after the decree had been transmitted by the Judge, Small Cause Court, on 29-7-45, the Judge, Small Cause Court, had no further jurisdiction in regard to the execution of the decree until a certificate of non-satisfaction had been received back from the Munsif, Hawaii, and that therefore all the applications previously made for retransmission of the decree to the Judge, Small Cause Court, Banaras were ineffectual and that therefore the execution application made to the Munsif of Hawaii on 9-1-'54 was beyond time being beyond three years of the date of the dismissal of the first application for execution by the Munsif of Hawali and also being beyond three years from the date of the dismissal of the previous application dated 8-3-'46.

(2.) The Courts below have rejected the objection of the judgment-debtor and have ordered execution to proceed. They have treated the application dated 7-3-'49, and 16-8-'50 as being steps-in-aid of execution. The judgment-debtor comes up in appeal and argues that once the Judge, Small Cause Court, Banaras, had transmitted the decree he had no further jurisdiction left to deal with the decree and any application made to him thereafter could not be treated as steps-in-aid and that the decree-holder should have taken his steps-in-aid before the Munsif of Hawali.

(3.) The submission seems to be justified. Section 38 of the Civil Procedure Code clearly indicates that