LOKE NATH ROY Vs. MAHIM CHANDRA DE

JUDGEMENT

(1.) THIS rule is not opposed and is made absolute. It appears that the. petitioner who is the decree-holder applied for execution of his decree and for transmission of the execution petition from the Court at Sunamgunj to the Court at Sylhet. It appears however that notwithstanding all his efforts to send a copy of the decree and a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed the Court at Sunamgunj did not send the copy of the decree and the necessary certificate to the Court at Sylhet as is required by Order 21, Rule 6, Civil P.C. The Munsif however came to the conclusion that if the petition be thrown out the entire decree would be barred by limitation and that the decree-holder did all in his power to have the certificate From the Sunarngunj Court: vide order sheet of Miscellaneous Execution Case No. 1232 of 1927 and he held that notwithstanding the absence of a formal certificate the Court had jurisdiction to proceed to execution. Against this order an appeal was taken to the Court of the District Judge of Sylhet and the learned District Judge has come to the conclusion that the Munsif's Court at Sylhet had no jurisdiction to entertain the application for execution for until the certificate was sent the decree could not be regarded as having bean legally transferred within the meaning of Secs.39 and 42, Civil P.C. THIS is an irregularity no doubt but the irregularity however does not affect the jurisdiction of the Court to entertain the application. Having regard to the fact in this case that the decree holder made all possible attempts to get the Sunamgunj Court to send the certificate to the Sylhet Court but he could not succeed, I think the Munsif was right in allowing in the circumstances of the case the execution proceedings to proceed. It has been held that the omission to send the certificate required by Section 224 of the Code of 1882 corresponding to Order 21, Rule 6 of the present Code could not affect the jurisdiction of the Court to proceed to execution and that it will be a mere irregularity and will not entitle any party to have the sale made by the transferee set aside. Such an omission was not even regarded as a material irregularity in the Madras High Court in the case of Abu Bakar Sahib v. Mahidin Sahib [1897] 20 Mad. 10. It will be open to the Munsif's Court at Sylhet to proceed with the executions provided the decree-holder files a certificate required under Order 21, Rule 6, Civil P.C. and gets the Sunamgunj Court send the certificate to the Munsif's Court at Sylhet. In this view the order of the learned District Judge must be set aside and the decree- holder will be allowed an opportunity of proceeding with the execution.

(2.) THE rule is therefore made absolute. THEre will be no order as to cases as the opposite party has not entered appearance in this rule.