BANARSI LAL SARAF Vs. B R OIL MILLS

JUDGEMENT

(1.) This appeal by the judgment-debtors raises a serious question as to the power of the Subordinate Judge, 1st Court, Patna, to execute the decree obtained by the respondent in the Court of the District Judge, Bharatpur.

(2.) The plaintiff decree-holder obtained a money decree for Rs. 17,313/- on 30-11-1970 from the District Judge, Bharatpur, and made a prayer for transfer of the same for execution to the District Judge of Patna which was allowed. He, however, did not file his execution case before the District Judge, Patna, rather he filed his execution petition before the Court of Subordinate judge, 1st Court, Patna, on the 12th June, 1971. In Column No. 5 of his execution petition, the decree-holder stated that the decree had been transferred from the Court of the District Judge, Bharatpur to the Court of the District Judge. Patna, and did not state that the same had been further transferred by the District Judge to the Subordinate Judge. It was further stated in the execution petition that the decree along with costs and interest had not been paid up by the judgment-debtors and, therefore, the decree-holder had got the same transferred to the Court of the District Judge, Patna, and he was praying that the decree should be executed. This statement also clearly indicated that after the decree was duly transferred to the Court of the District Judge, Patna, there was no order passed by the District, Judge, Patna, transferring the same to the Subordinate Judge.

(3.) The judgment-debtors filed an application under Section 47 of the Code of Civil Procedure raising several points against the maintainability of the execution case. It was not specifically stated therein that the execution case was not maintainable in absence of an order of transfer by the District Judge to the Subordinate Judge, but in paragraph 6 it was stated that the execution case was not maintainable on grounds which would be urged thereafter, presumably meaning thereby the grounds which might be raised at the time of hearing of the application under Section 47 of the Code of Civil Procedure. At the time of hearing of the application by the Court below, this was the main point urged on behalf of the judgment-debtors and considered by the Court below at some length. No objection appears to have been raised to the judgment debtors' taking up this point at the time of hearing, although specifically it was not mentioned in the application under Section 47 of the Code of Civil Procedure. The Court below held that in view of the decision given in Maharaj Kishore Khanna v. Raja Ram Singh, AIR 1954 Pat 164 the execution proceeding could not be said to be illegal. Overruling other objections, the Court dismissed the judgment-debtors' application under Section 47 of the Code of Civil Procedure, The judgment-debtors have come by way of present appeal to this Court from the said decision.