PARMANAND RAI Vs. BALRAM DAS FAQIR CHAND

JUDGEMENT

(1.) THIS is a Second Appeal against the order of the learned District -Judge, Ghazipur remanding the decree holders application for execution to the execution court for a decision on merits. The facts of the case are as follows:

(2.) THE learned Civil Judge held, on an objection by the judgment debtor, that the could not execute the decree unless it had been transferred to his Court by the court which had passed the decree. He allowed the objection and dismissed the decree holder's application for execution on the ground that the decree had not been sent to his Court by the Munsif of Rasra, but had been presented by the decree holder direct.

(3.) THE sole question in this appeal is whether after the execution application had been returned by the Munsif of Mohammadabad to the Munsif, Rasra (or rather its successor court), the latter court, by passing an order directing the decree holder to present the application to the proper court, will be deemed to have "sent" the decree for execution to the court of the Civil Judge, Ghazipur in accordance with Section 38 and Order 21, Rule 6 Code of Criminal Procedure. The learned Civil Judge took the view that the decree was not properly sent "as the decree holder had taken the application himself" whereas it should have been sent by the court direct to him. In my opinion the view taken by him of the directions in these provisions is much too narrow and technical. They require that the court which passed the decree should send it to the court which is required to execute it. No particular manner of sending it is prescribed. There is nothing in the section or the rule to prevent the court passing the decree handing over the execution application to the decree holder himself with a direction to take it to the court required to execute it. When this is done, the requirements of the Code are complied with. The real purpose of the provisions is that the executing court should have the authority of the court which passed the decree to enable it to execute it. The vital Parr of the provisions is the existence of this authority and not the manner of its transmission to the other court. It cannot be disputed, in the case before me, that the court which passed the decree did authorize the court within whose jurisdiction the property lay to execute the decree. I am therefore, inclined to hold that there has been sufficient compliance with the provisions of Section 38 and Order 21 Rule 6.