MAHALAKSHMAMMA IN RE Vs. MAHALAKSHMAMMA IN RE

JUDGEMENT

(1.) IN this revision petition the correctness is questioned of the order made by the Subordinate Judge, Gudivada under Section 39, Civil Procedure Code transmitting the decretal order in I. A. No. 846 of 1954 in O. S. No. 113 of 1951 for execution to the Subordinate Judge's Court, Masulipatnam The objection taken is that notice under the proviso to Order XXI Rule 22 (1) as amended in Madras should have been given to the petitioner, who is the judgment-debtcr, before the order transmitting the decree was made. But the petition was noc an application for execution. It was only one under Section 39, Civil Procedure Code made to the court which passed the decree, as it has to be. The Subordinate Judge's Court, Gudivada was the court which passed the decree and not the Court executing the decree for the purpose of the application. No relief was sought in the petition except the transmission of the decree. It is therefore impossible to agree with the contention of the learned counsellor the petitioner that the petition came within the ambit of Order XXI Rule 22. Notice under Order XXI Rule 22 has to be taken in the transferee court before execution and this was rightly mentioined in the order transmitting the decree.

(2.) THE learned counsel for the petitioner points out that he would be precluded from raising certain objections in the transferee court and that he is, to that extent, prejudiced by the absence of notice. But as observed in Swaminatha Aiyyar v. Vaithianatha Sastriar he can apply to the transferee court under Order XXI Rule 26 and agitate such questions in the transferee court. From this point of view, the position of the judgment-debtcr is the same whether the application to the court which passed the decree is made within two years of the last order or afterwards It is really not relevant to the question whether the petition comes within the proviso to Order XXI Rule 22 which directs the court executing the decree to issue notice. Hence there are no grounds for intetference in revision. This revision petition is dismissed. Petition dismissed.