GAURI SHANKAR Vs. FIRM DULICHAND LAXMI NARAYAN

JUDGEMENT

(1.) THIS revision, purporting to be under Section 115 of the Civil Procedure Code, has been filed by the judgment-debtor and is directed against the order, of the additional District Judge, Umaria, District Shahdol dated 2-7-1957, holding that the execution of the decree, transferred by the Second Additional District Judge, bilaspur to that Court under Section 39 of the Civil Procedure Code, without complying with the procedure laid down by Order 21, Rule 5 of the Civil Procedure code, could proceed and that it was not necessary to return the transfer certificate to the transferor Court.

(2.) ALTHOUGH the learned counsel for the decree-holder did not specifically raise the question relating to the tenability of a revision, I, during the course of the arguments pointedly asked the learned counsel for the petitioner as to why the memo was termed as a revision. The objections, raised in the executing court, relating to the tenability of the execution and the jurisdiction of the executing court to proceed, were, in fact, covered by Section 47 of the Civil Procedure Code. As such, under the said section, an appeal lay to this Court. See the case of Firm ganeshdas Badrinarayan v. Amulukchand, AIR 1940 Cal 161, decided by a Division bench of the Calcutta High Court. Consequently I shall treat this as an appeal under Section 47 of the Civil Procedure Code and shall dispose it of accordingly, so that the party aggrieved would have a right of appeal, under Clause 10 of the letters Patent, as a matter of right, on the authority of Madhukar Trimbaklal v. Sati Godawari Upasani Maharaj, ILR (1940) Nag 141: (AIR 1940 Nag 39) (FB ). There is authority for this course of action in treating a revision as an appeal and 'vice versa'. See the case of Sahdeo Singh v. Melhusingh, ILR 49 All 178: (AIR 1927 All 120 ). Neither the question of court-fee nor limitation is affected by this course. This course adopted by me, is proper, as the question involved is on important question, requiring an authoritative decision, in view of the conflict of views in the various High Courts.

(3.) THE learned counsel for the judgment-debtor appellant urged that the Additional district Judge, Bilaspur sent the transfer certificate along with the execution ease directly to the Additional District Judge, Umaria instead of the District Court, rewa. As such he complained that Order 21, Rule 5 of the Civil Procedure Code had not been complied with. The said rule is as follows: