L KRISHNA BHOOPATHI DEO GARU Vs. HON BLE MRSRI MIRZA SRI PASUPATI VIJIARAMA GAJAPATHIRAJA MAHARAJA MANYA SULTAN BAHADUR GARU RAJA OF VIZIANAGARAM

JUDGEMENT

(1.) Two grounds of appeal are pressed. It is contended (1) that the order of the District Court recognising the transfer of the decree by the Manager and Agent of the estate of the Maharaja, of Vizianagaram in favour of the second respondent and allowing the latter to execute the decree was an order made without, jurisdiction, the proper Court which should pass such an order in a case, which had gone up to the Privy Council in appeal from a decree of the High Court which confirmed the original decree of the District Court, being the High Court; (2) that Mr. Fowler as Attorney of the Maharaja was not expressly authorised under the Power, which is Exhibit A, to transfer decrees obtained by his principal for less or indeed for any amounts.

(2.) No direct authority has been quoted in support of the first proposition. It is sought to be inferred from the language of Order XLV, Rules 15 and 1G read along with Sections 38, 39 and 12, Civil Procedure Code. Reference has also been made in the arguments to the decision in Swaminatha Aiyar v. Vaidyanatha Sastri (1905) I.L.R., 28 Mad., 466 (F.B.), in which it was held that an application under Section 234 of the Code of 1882 (corresponding to Section 50 of the present Code) to execute a decree against the legal representatives of a deceased judgment-debtor must be made to the Court which passed the decree and not to the Court to which it has been transferred for execution; and the decision in Hurrish Chunder Chowdhry v. Kalisunderi Debi (1883) I.L.R., 9 Calc., 482 is cited as an instance of the High Court disposing of a similar question arising in the execution of an order of Her Majesty in Council. But in my opinion the position of an original Court, which itself passed a decree against which appeals have been carried up to the Privy Council, when it receives the order of His Majesty in Council transmitted to it by the High Court, is not to be compared with the position of a Court to which the decree of another Court has been transferred for execution. They are totally different positions.

(3.) Order XXI, Rule 16, permits a transferee of a decree to apply for execution of the decree to the Court which passed it. Section 38 permits a decree to be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 37 defines the expression "Court which passed a decree" as including the Court of first instance where there has been an appeal. Similar words are used in Order XLV, Rule 15, where it is provided that the Court from which an appeal to His Majesty has been preferred shall transmit the order of His Majesty in Council to the Court which passed the first decree appealed from. The act of the High Court in receiving and filing an order of the Privy Council is a purely ministerial function [vide observation in Premlall Mullick v. Sumbhoonath Roy (1895) I.L.R., 22 Cal., 960 at p. 971]. It is so provided that the High Court should act as an intermediary for carrying out the orders of His Majesty in Council, because the Privy Council does not deal direct with subordinate Courts.