MAHARAJA SREE MAHARAJA SAHEB MEHARBAN DOSTAN SREE MAHARAJA SRIHONOURABLE RAO VENKATA SWETACHALAPATI RANGA RAO BAHADUR, K C I E THE MAHARAJA OF BOBBILI Vs. SREE RAJA NARASARAJU PEDA BALIAR SIMHULU BAHADUR GARU

JUDGEMENT

(1.) The question is whether the plaintiff s application is barred by limitation. The plaintiff obtained a decree in Original Suit No. 11 of 1903 on the file of the District Court of Vizagapatam. The decree was transferred to the District Munsif s Court of Parvatipur for execution on the 5th October 1904. The decree-holder got certain immoveable properties attached, but the petition was dismissed on the 10th of March, 1905 and no further steps were taken in the District Munsif s Court. The decree-holder then applied to the District Court at Vizagapatam on the 13th December, 1907 for the sale of the property attached by the District Munsif. The petition was returned for amendment under Section 235 of the Code of Civil Procedure of 1882. It was represented without amendment and was then recorded without being registered. The decree-holder makes this present application on the 21st April 1910 for notice and for the realisation of the amount by sale of the properties already attached. The question whether this present application is barred by limitation depends on the question whether the application of the 13th December 1907 to the District Court was in accordance with law and to the proper Court.

(2.) The application of the 13th of December 1907 prayed for notice under Section 248 of the Civil Procedure Code of 1882 and the decision of the District Judge that such application must be treated as a step in aid of execution is in accordance with the decision in Pachiappa Achari v. Poojali Seenan (1905) I.L.R. 28 Mad. 577. The only question that remains therefore for decision is whether the application is made to the proper Court. The District Judge decides that the proper Court to which the application should have been made was the District Munsif s Court of Parvatipur to which the decree had been transferred for execution and that therefore the present application is barred under Section 223 of the Civil Procedure Code of 1882 (Section 41 of the present Code) the Munsif s Court of Parvatipur to which the decree was sent for execution has to certify to the District Court of Vizagapatam the fact of such execution or if the Munsif s Court fails to execute the decree the circumstances attending such failure. Till that is due the Munsif s Court retains its jurisdiction to execute the decree. See Abda Begam v. Muzaffar Husen Khan (1898) I.L.R. 20 All. 129. There is no doubt therefore that the Munsif s Court had jurisdiction to entertain a similar application for sale, though that Court had dismissed the application for execution in 1905. This was not denied in argument before us.

(3.) The next question is, is that the only Court to which this application could be made or had the District Court also jurisdiction to order the sale of the property. Under Section 38 of the Civil Procedure Code of 1908 (Section 223 of the Code, Act XIV of 1882) the decree may be executed "either by the Court which passed or by the Court to which it is sent for execution." This in itself does not authorise the District Court of Vizagapatam which passed the decree to execute it after it had been sent for execution to the Munsif s Court of Parvatipur. Section 39 states the conditions under which a decree may be sent to another Court for execution. Under Clause (e) it may be sent for execution to another Court if the Court directs the sale or delivery of immoveable property situated outside the limits of the jurisdiction of the Court which passed the decree, and presumably within the limits of the jurisdiction of the Court to which it is sent for execution. The reason for the transfer in this case is plain enough. By Clause (a) it may also be sent to another Court if the judgment-debtor resides there or carries on business or work for gain within the limits of the jurisdiction of that Court. Under Clause (b) if the judgment-debtor has no property within the jurisdiction of the Court which passed the decree sufficient to satisfy the decree and has property within the limits of the jurisdiction of the Court to which it is sent, the decree may be sent to that Court for execution; under Clause (d) of Section 39, if the Court which passed the decree considers for reasons which shall be recorded in writing that the decree should be executed by another Court, then also the decree may be sent to another Court for execution. This section does not say that after the decree has been sent to another Court for execution, the Court passing the decree may not simultaneously carry on execution proceedings, but it is plain enough that Section 39 intends that it is only for special reasons that the decree should be sent to another Court for execution. Thus, if there is sufficient property by the sale of which the debt may be realised ordinarily, no Court would be justified in sending the decree to another Court for execution. At the same time it is quite possible that concurrent execution may be necessary. If, for instance, a property within the jurisdiction of the Court which passed the decree is comparatively not of much value, and the property within the jurisdiction of the Court to which the decree is sent is also not comparatively of much value, then there can be no injustice to the judgment-debtor in carrying an execution proceedings in both the Courts. If the decree is sent for execution to two or more Courts to be executed at the same time and the amounts realised in the aggregate may be much higher than the judgment debt, it would manifestly be an injustice to the judgment-debtor to allow the execution proceedings to go on at the same time. Further more, if the full amount of the decree is realised by two or three Courts it is difficult to see how matters can be worked out, which of the sales is to be held valid and on what grounds, and, what interests would be acquired by the purchasers at those sales. It is true the judgment-debtor may apply for stay of execution proceedings under Order XXI, Rule 26, but he is not entitled to get the execution proceedings stayed. While therefore these sections may not show that concurrent execution cannot be carried on, they certainly show that such execution should be allowed only in exceptional circumstances. It is only when such execution is necessary in the interests of the decree-holder and when it can be carried on without hardship to the judgment-debtor that it ought to be allowed by the Court which passed the decree. The other provisions show that such Court apparently retains control over the execution proceedings. When the decree has to be executed against the representative of the judgment-debtor, then according to Section 50 the application has to be made to that Court which passed the decree. When a decree has to be executed at the instance of the assignee of the decree-holder, then also the application has to be made under Order XXI, Rule 16, to the same Court. Then again power is given to such Court to stay the execution proceedings in the Court to which the decree is sent for execution. When therefore concurrent execution is necessary the Court which passed the decree may order it. But till such order is passed and permission is given to the decree-holder to execute the decree simultaneously in more than one Court, he is not entitled to carry on execution proceedings at the sam8 time. The decision seem to bear out this view. In Saroda Prosaud Mullich v. Luchmeeput Sing Doogur (1872) 14 M.I.A., 629 at p. 540, their Lordships of the Privy Council held that it was open to a Court to send the decree for execution to three Courts at the same time-This decision was passed under the Civil Procedure Code of 1859. It may be pointed out that under Section 286 of that code the Court was bound to transmit the decree for execution to another Court "unless there be special reasons to the contrary". Under the Codes of 1882 and of 1908 it is optional with the Court to send it to another Court. Under Section 284 of the Code of 1859 their Lordships point out, that when the decree is sent for execution to another Court, conditions may have to be imposed upon the decree-holder. This also shows the necessity of the exercise of judicial discretion. In Krish-tokishore Dutt v. Rooplal Dass (1882) I.L.R. 8 Calc. 687, also there was an order by the Court which passed the decree for simultaneous execution. These decisions are authorities for the proposition that decrees may be executed simultaneously in more than one Court, but in all those cases there were orders allowing such execution and the consideration that I have already set out would seem to indicate the necessity of an order permitting concurrent execution before such execution proceedings can be carried out. In the present case after the decree was transferred for execution to the Parvatipur Munsif s Court that Court had seisin of the execution proceedings and it was bound to carry them on until execution was obtained or further execution became impossible. There was no order of the District Court of Vizagapatam staying execution in that Court, for the purpose of executing the decree in the Vizagapatam Court itself. I am therefore of opinion that the Judge is right in holding that the application for sale in 1907 should have been made to the Parvatipur Munsif s Court and that the District Court was not therefore the proper Court to entertain such an application.