1. This is an appeal under Clause 10 of the Letters Patent against the order of the single Judge of this Court dismissing summarily the appeal filed by the appellant against the order of the Additional District Judge, Mandla, dated 11-4-1960.
2. The appellant obtained a compromise decree against the respondents from the Court of the Additional District Judge, Jabalpur, which provided 'inter alia' that the decretal amount shall be a charge on 2400 shares of Muir Mills and
'In the event of the decree remaining unsatisfied on or before 12th April 1959, the plaintiff Bank shall be entitled to sell the 2400 Muir Mills Ltd. shares pledged with It, and realise its dues either in whole or in part, and the decretal amount is thus created a charge on the sated shares. For the balance, if any, the defendants shall be personally liable as in (a) above'.
At the request of the appellant, the Additional District Judge, Jabaipur, transferred the decree for execution to the Additional District Judge, Mandla, on 1-24960. On 13-3-1960, the appellant applied to the Mandla Court to attach some immovable properties belonging to the respondents. On 3-5-1960, some of the judgment-debtors applied under Order 21, Rule 26, Civil Procedure Code, for stay of the execution to enable them to get the decree modified; but that application was rejected then, they applied on 28-7-1960 stating that the decree-holder could not proceed against their immovable property before enforcing his charge by selling the shares. This contention prevailed and the execution petition was dismissed. The appeal against the order was summarily rejected and the matter is thus before us.
3. Shri A. P. Sen for respondent No. 1 has raised a preliminary objection that the appeal is barred by time. The appeal was dismissed on 22-8-1960 and the presant appeal was filed on 540-1960. Under Rule 13, Chapter IV of the High Court Rules the appeal should have been filed within thirty days; but the Court has power to entertain it even beyond that period. The relevant part of that rule is as follows:
'No memorandum of appeal tinder Clause 10 of the Letters Patent shall be entertained if presented after the expiration of thirty days from the date of the judgment. appealed from unless the admitting Bench in its discretion for good cause shown grants further time for the presentation.'
Shri R. S. Dabir for the appellant has stated in this case that he was not aware of the order till 5404960. Cases fixed for orders on motion hearings are not listed and so the counsel does not know about the order until he makes enquiries. It appears that in this case the counsel applied on 12-94960 for filing some documents in appeal and this indicates that he was not aware of the order. As the counsel did not know the order for some time, we condone the delay.
4. Two points were urged before the learned Single Judge, namely, (i) that the Court at Mandla had nor jurisdiction to decide the question of the executability of the decree; and (ii) that, on merits, the decree could be executed against other properties without enforcing the charge. These contentions are repeated before us. In addition, the learned counsel for the appellant has added that, at any rate, the Court should have only stayed execution subject to the attachment of immovable properties.
5. On the first two points, we have no doubt that the decision of the learned Single Judge is correct. Under Section 42 of the Code of Civil Procedure 'the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself'. The question whether the decree could be executed against certain properties falls squarely within this provision and can therefore be determined by the transferee Court.
6. Shri Dabir contends that under Order 21, Rule 26, the executing Court can only stay the proceedings and the matter should be determined by the original Court. According to him, if every matter can be decided by the transferee Court, this rule is rendered otiose. There is no substance in this contention. Firstly, that rule Joes not place any limitation on the powers of the transferee Court as given in Section 42. Further, the rule is still not rendered otiose; for there are several occasions when stay would be necessary at the instance of the judgment-debtor.
To illustrate he may like to file an application under Order 20, Rule 11, for instalments or for correction of a clerical error in the certificate, or to challenge any irregularity in the proceedings before the transfer of the execution or any question relating to the substitution of legal representatives made without notice to him. We need, net multiply instances. Thus, Rule 26 of Order 21 has application in many cases in spite of the wide powers given to the transferee Court under Section 42. We hold that the matter could be determined by the transferee Court.
7. So far as the merits of the order are concerned, the wordings of the compromise decree clearly indicate that the) personal liability of the judgment-debtors arises only after the shares are sold and there is a balance tn recover. As held in Fatehchand v. Indian Cotton Co., Ltd., Bombay, AIR 1935 Nag 129, the primary remedy of a charge-holder is to enforce the; charge before he can claim to execute against the other properties of the debtor. Thus, the decree cannot be executed against the other properties of the respondents before the shares have been sold.
8. The last point that the proceedings should have been stayed subject to terms under Sub-rule (3) of Rule 26 of Order 21 is equally devoid of any merit. That rule applies only when a request for stay is made by the judgment-debtor. No such request was made by them in this case. Further, as the Court held that the execution could not proceed, no question of stay arose. The learned counsel for the appellant said that the objection should have been raised in the original Court before the transfer; but there is nothing on record to show that a notice was given to them at that stage or that they had an opportunity to oppose the transfer of the execution on that ground.
9. In the result, the appeal is dismissed with costs.Hearing fee is fixed at Rs. 50/- only. Only one set offees is allowed to the respondents.