MASRAB KHAN Vs. DEBNATH MALI ALIAS ABHU MALI

JUDGEMENT

(1.) This appeal is on behalf of the decree-holder and it is directed against an appellate order of the Subordinate Judge, third Court, Mymensingh, dated 5 August 1939, reversing the order of the Munsif, First Court, Kishoreganj, made in a proceeding under Section 47, Civil P.C. The material facts lie within a narrow compass and are not disputed. The appellant obtained a mortgage decree against the defendants-respondents in the Court of the First Munsif at Kishoreganj and the decree was made final on 7 December 1932. The first application for execution was made on 3 December 1935 and it was filed in the Court of the Second Munsif at Kishoreganj and not in that of the First Munsif which passed the decree, the ground alleged being that subsequent to the passing of the decree the particular area where the mortgaged property was situated was assigned to the Munsif, Second Court, under Section 13(2), Bengal Agra and Assam Civil Courts Act. This application was dismissed for default on 10 December 1935. The present application for execution was presented in the court of the First Munsif on 15 November 1938.

(2.) The whole controversy centres round the point as to whether the first application for execution was an application made to the proper Court within the meaning of Art. 182, Clause (5), Limitation Act. If it was, limitation would run from 10 December 1935 when the final order was made in the proceeding, and the present application would be in time. If not, the application must be held to be time-barred. The trial Court decided this point in favour of the decree-holder. The lower appellate Court has decided against him. The sole point for our consideration in this appeal is whether the view taken by the lower appellate Court is right. To determine this point it is necessary first of all to turn to the relevant provisions of the Code of Civil Procedure. Under Section 38 of the Code, a decree can be executed by the Court which passed the decree or by the Court to which it is sent for execution. Section 37 defines the expression Court which passed a decree , and Clause (b) of that section lays down that the expression shall be deemed to include "where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit."

(3.) The only other relevant provision is contained in Section 150, Civil P.C., which runs as follows: Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.