ABDUS SATTAR Vs. MOHINI MOHAN DAS

JUDGEMENT

(1.) This is an appeal by the judgment-debtor and arises out of an application made in the course of the execution of a mortgage decree. It appears that on 19 June 1908 appellant's father one Mohammad Abru borrowed a sum of Rs. 200 by executing a mortgage bond, from the respondents father Madon Mohan Das. On 21 November 1914 a decree was passed for a sum of Rs. 1,083-9-3 and on 5 June 1917 the mortgaged properties were directed to be sold. An application was made for a personal decree under the provisions Order 34, Rule 5, Civil P. C, and on 29 November 1919 a personal decree for a sum of Rs. 997-11-4 was passed by a Munsif who it is found had no jurisdiction to pass such decree. On 21 November 1922 an execution case was started by the decree-holder but it was ultimately dismissed. A further application for execution was made on 19 November 1925 before the second Munsif's Court at Sylhet, the said Munsif's Court being at this time presided over by a Munsif who had pecuniary jurisdiction only up to Rs. 1,000. On 31 January 1928 the appellant's father Mohammad Abru died; and on 15 November 1928 a petition for execution was filed by one of the respondents-respondent 3 against Abru who was then dead and thereafter an execution case was started.

(2.) On 27 November 1928 the heirs of the deceased judgment-debtor Mahammad Abru were substituted but it is said that no notice of the execution case was served on all the heirs. The execution case was ultimately dismissed. On 1 July 1931 the present execution case was launched by the decree-holder. To this execution the judgment-debtors objected on the ground that it was barred by the statute of limitation. The argument on this head is based on the contention that the previous application for execution, which was filed on 19 November 1925 having been made before the second Munsif's Court of Sylhet, the Court which passed decree but the pecuniary limits of whose jurisdiction had in the meantime been altered from Rs. 2,000 to Rs. 1,000, cannot be regarded as having been made in the proper Court and therefore this application cannot be availed of for the purposes of limitation. This contention has been overruled by the Courts below which have held that the execution application was not barred.

(3.) This second appeal has been preferred to this Court against this order allowing the execution to proceed; and it is contended that, having regard to the language of Section 37, Civil P.C., the Courts below should have held that the application for execution of November 1925 was an application which was not made before the proper Court, because, it is said, the Court which passed the decree has ceased to have jurisdiction to execute the decree for the Court which passed the decree, although it was the second Court of Sylhet yet at the time the decree was passed was presided over by an officer who had jurisdiction to entertain the suit, namely, a Munsif who was invested with powers to try suits up to the value of Rs. 2,000. It is contended that in view of the plain language of 6. 37 the Courts below were wrong in not giving effect to the contention of the judgment-debtor. The question is no doubt of some difficulty and speaking for myself I do not know what view I might have taken of the matter if it has been res integra. The thing that matters is as has been already stated, that it seems to me to be decided in one direction and I can see nothing which would justify me in deciding this in a way inconsistent with what has been determined by the decision to which I shall presently refer.