B. Mukerji, J.
1. This is an execution first appeal arising out of an order of the Civil Judge, Malihabad at Lucknow, dated 24-2-1951 whereby he dismissed an application of the decree-holder appellant for the transfer of a decree from his court to the court of the Civil Judge, Bahraich.
2. It is necessary to state a few facts in order to appreciate the questions that arose for determination in this appeal.
3. A decree for money was passed on 6-5-1931 for a sum of Rs, 246203/- odd, in favour of Raja Bahadur Bushimalh Saran Singh of Tiloi against Khan Bahadur Mohammad Ali Khan of Aliabad Estate in Baharich District. The first application for execution was made in the year 1932 which, however, proved abortive. But it appears that on 10-8-1933 a sum of Rs. 44129/- odd, were received by the decree-holder towards part satisfaction of the decree.
4. In 1935 the judgment debtor died and on 10-10-1956 the decree-holder applied for substitution of two individuals in the place of the original judgment-debtor: these two persons were Sardar Nawazish Ali Khan and Sardar Ali Raza Khan, In this very application for substitution, the decree-holder also added a prayer to the effect that the decree be transferred for execution to the Civil Judge, Bahraich, where apparently the decree-bolder expected to find properties belonging to the judgment debtor. On 15-4-1937 the Civil Judge Malihabad, ordered substitution as also directed a transfer of the decree for execution from his court to the court of the Civil Judge, Bahraich.
5. On 14-1-1938 an application for execution was made on behalf of the decree-bolder in the Bahraich court apparently in pursuance with the provisions of Order 21, Rule 10 of the Civil Procedure Code. This execution again proved infructuous and on 17-2-1938 the Bahraich court made an order consigning the execution application to the record. The certificate of non-satisfaction which the transferee court had to send to the transferor court was, however sent by the Civil Judge, Bahraich, to the Civil Judge, Malihabad, on 30-7-1941.
It appears, however, that the decree-holder in the meantime came under some sort of disability whereupon the Court of Wards took over the management of the estate of the decree-holder. The Deputy Commissioner incharge of the Court o Wards, therefore, figured in place of the original decree-holder in the array of the parties. He, therefore, applied again to the Civil Judge, Malihabad, for transferring the decree to Bahraich. This application appears to have been made on 31-5-1941.
On 28-5-1942 the Civil Judge, Malihabad, dismissed this application on the ground that the application was barred by time. An appeal was filed against this order of the Civil Judge by the Deputy Commissioner, Rae-Bareli incharge of Court of Wards who represented the original decree-holder's State. But this appeal was preferred as against only one of the two judgment-debtors, namely, the appeal was against Sardar Nawazish Ali Khan only.
The only other judgment-debtor, Ali Raza Khan, was not made a party to this appeal. The appeal was preferred to the then Chief Court of Avadh. and that Court allowed the appeal on the 25-4-1945 holding that the application which had been made on 31-5-1941 was within limitation. It appears that in September, 1947 a notice was issued to the judgment-debtors to show cause why the execution was not to proceed against them; this obviously was in view of the application which had been dismissed by the Malihabad court but which was held by the Chief Court not liable to dismissal on the ground of limitation.
6. After this, there appears to have been some litigation between the judgment-debtors inter se with the result that Nawazish Ali Khan lost all interest in the properties which all went to Ali Raza Khan, that is to say, for all practical purposes of the decree-holder of this appeal Ali Raza Khan remained the only relevant judgment-debtor. An application for leave to appeal to the Privy Council appears to have been filed and in those proceedings it appears that an order of stay was obtained on 4-2-1948.
That stay order remained operative from that day on to 2-8-1949 on which date the stay order was vacated. On 12-8-1949 the Civil Judge, Malihabad, restored formally the proceedings that were pending in his court to its original number, and on that date the money which had been filed in the then Avadh Chief Court towards security for the proposed Privy Council appeal was attached, namely, a sum of Rs. 4000/- was attached.
7. On 10-9-1949 Ali Raza Khan made his appearance in these proceedings and he wished to contest and did as a matter of fact, contest the matter. The points that Ali Raza Khan raised at this stage were three, first that the sum of Rs. 4000/-which had been put in by way of security money in the Privy Council appeal could not be attached, secondly that there could be no transfer of the decree to Bahraich, and lastly that the execution application dated 29-7-1941 and the one dated 12-8-1949 must be dismissed with costs.
To these proceedings Nawazish Ali Khan was a pro forma party. On the objections of Ali Raza Khan the learned Oivil Judge framed a number of issues and it is not necessary for our purpose to quote these issues. What appears further is that after having made his objections in the Court of the Civil Judge, Ali Raza Khan made his way out of the country, into Pakistan.
The result was, as was bound under the law, that his property became evacuee property and the Custodian Evacuee Properties stepped in the place of Ali Raza Khan and on him devolved in law the responsibility or the duty of contesting all such claims as Ali Raza Khan could have. The Custodian thereupon came on to scene and he contested the execution matter on the same terms on which Ali Raza Khan had initiated its contest.
8. The learned Civil Judge, Malihabad, instead of making an order of transfer on its merits, went on to consider the question which in our opinion did not appropriately arise before him. The learned Civil Judge found all the points in favour of the decree-holder, namely, he found that the decree was not barred, further that the decree could be transferred for execution. Rut what he found further was that even with all this in favour of the decree-holders since the application that was likely to be put in to the court of Civil Judge, Bahraich in pursuance of the provisions under Order 21, Rule 10 of the Code of Civil Procedure, was likely to be barred by limitation, the learned Civil Judge, Maiihabad refused to make an order transferring the decree from his Court to the court of Civil Judge, Rahraich.
The bar of limitation which the learned Civil Judge thought was going to come into operation was the bar prescribed by Section 48 of the Code of Civil Procedure. The application which had been made for transfer to the learned Civil Judge, Maiihabad, was on his own showing not barred by limitation. That being so what the position was going to be subsequently was, in our opinion, no concern of the learned Civil Judge, Maiihabad, at that stage, for the learned Civil Judge should have realised that there were many considerations which the law required to be investigated before a power under Section 48 of the Code be inextricably clamped on a decree-holder and debar him from getting his remedy in execution.
9. Section 39 gives the decree-holder a right to apply to the court passing the decree for a certificate of transfer. Under that section the transferring court is not called upon to see whether or not at some date subsequent to the transfer, an application as contemplated under Order 21, Rule 10 of the Code of Civil Procedure was likely to be barred or not.
10. It may here be pointed out usefully that there was an order of stay in this case and that order of stay operated for a period of about one year and six months. This period, under Section 15 of the Limitation Act, was to be excluded in computing the period of limitation as prescribed under Section 48. Then there was the question of fraud of force. The decree-holder if he got a chance, which we find he did not, because the judgment-debtor never raised this plea in his objections could show that the bar under Section 48 did not apply against him. That being the position we are of the opinion that the learned Civil Judge was wrong in the order that he made. We accordingly allow this appeal, set aside the order of the court below and send the case back to the trial court with the direction that it should issue the necessary certificate transferring the decree from his court for execution to the court of Civil Judge, Bahraich.
11. Since the respondent has not appeared before us either in person or through Counsel, we make no order as to costs. We, however, wish to make it perfectly -clear that this order of ours will not preclude the judgment-debtor from showing to the Bahraich court when the application under Order 21, Rule 10, C. P. C. is made in the transferee court that that application was barred.