ASIRUDDIN MONDOL Vs. RAM SAKHI DEBYA

JUDGEMENT

(1.) This appeal (Miscellaneous Appeal No. 158 of 1923) and the connected Rule (Rule No. 167 of 1923) arise out of proceedings in execution of a decree under the following circumstances.

(2.) The decree-holders obtained a decree for money against the judgment-debtor in the Court of the Munsif, Second Court, Bogra on the 11 May 1910. After several applications for execution, the decree-holders finally made an application for execution of the decree in the Court of the Second Munsif on the 11 May 1922, praying for attachment and sale of certain immoveable property situate within the jurisdiction of the Munsif, Third Court, as assigned by the District Judge under Section 13, Clause (2) of the Civil Courts Act. On the same day the Munsif, Second Court held that he had no jurisdiction to entertain the application and directed it to be returned to the decree-holder for presentation to the proper Court within seven days. It is stated that this order was passed in Chambers and was shown to the decree-holder's Pleader on the 13 May who thereupon took the application back and filed it on the same day in the Third Court. That Court directed the decree-holder to file a "certificate", presumably a certificate of transfer under Section 39, C.P.C. Thereupon the decree-holder applied to the Second Court for a certificate and the latter sent the necessary certificate to the Third Court on the 18 May 1922. Proceedings in execution thereafter were taken in the Third Court. Subsequently upon the judgment-debtor's objection the Third Court, held that the application was barred by limitation. On appeal the Subordinate Judge held that the application was not barred. The judgment-debtors preferred an appeal to this Court, and the case was remanded for certain findings. After the arrival of the findings the appeal was heard, and at the hearing of the appeal a rule was issued calling upon the judgment-debtors to show cause why the order of the Second Court holding that it had no jurisdiction to entertain the application and returning the application for presentation to the proper Court should not be set aside.

(3.) The question for consideration is whether the Second Court had jurisdiction to entertain the application for execution. The Second Court passed the decree, and under Section 38 of the C.P.C. a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 57 provides that the expression -"Court which passed a decree" shall in relation to the execution of decrees unless there is anything repugnant in the (subject or context be deemed to include, (omitting Clause (a) which has no bearing upon the present question) (5) 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.