AYANAMPUDI VENKAYYA Vs. LANKA RATTAYYA

JUDGEMENT

(1.) The decree in O.S. No. 15 of 1931 on the file of the Subordinate Judge's Court at Bezwada having been assigned to the respondent, he applied to the learned Subordinate Judge under Order 21, Rule 16 to be brought on record as the transferee decree-holder. Objection having been made by the petitioner, the respondent desired to call evidence in support of his application. In C.M.P. No. 392 of 1938, he applied for the issue of a commission warrant to the Small Causes Court, Calcutta, for the examination of two witnesses on interrogatories. This application was made under the provisions of Order 26, Rule 4, Civil Procedure Code. The learned Subordinate Judge allowed the application.

(2.) The petitioner contends that this order was passed without jurisdiction as the provisions of the above order apply only to suits and do not apply to proceedings in execution. It is not disputed that the application under Order 21, Rule 16 is a proceeding in execution. The relevant provisions of Order 26, Rule 4 are as follows: Any Court may in any suit issue a commission for the examination of (a) any person resident beyond the local limits of its jurisdiction.

(3.) The two witnesses whose evidence was required lived over 200 miles from Bezwada and beyond the local limits of the Subordinate Judge's Court, and in that respect the application was justified. The respondent contends that by Section 141, Civil Procedure Code, the provisions of the above rule are made applicable to proceedings in execution. Section 141 reads as follows: The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.