1. This appeal raises a question of the interpretation of Section 63 of the Civil Procedure Code. The facts are that in execution of three decrees against the same judgment-debtors the same property was attached. Two of the decree-holders one of whom is the present appellant, had their decrees transferred to the Sub-Court, Narsapur. The third decree-holder, who is the present first respondent, had his decree transferred to the District Munsif of Narsapur. Subsequently action was taken under Section 63 by which the proceedings before the District Munsiff of Narsapur were called up to the Subordinate Judge's Court. The decree-holder, whose decree had been thus called up, that is to say, the first respondent, then applied to the learned Subordinate Judge to sell the attached property. The sale was duly held. Thereupon the present appellant filed an application under Order 21, Rule 90, Civil Procedure Code, requesting the Court to set aside the sale on two grounds (1) that it was vitiated by material irregularities, and (2) that the Subordinate Judge had no jurisdiction to hold the sale at all. This application was filed Oil the 23rd November, 1934, whereas the sale had been held on the 9th July. The application was therefore prima facie out of time and the learned Subordinate Judge has held that the appellant has not pleaded in sufficient detail any fraudulent actions on the part of the respondent which would enable him to rely upon Section 18'of the Limitation Act. The learned Judge has therefore held that the application under Order 21, Rule 90 is barred by limitation.
2. In appeal we have been asked to read into the application what is not obviously there, namely, an allegation that there has been fraudulent conduct on the part of the respondent which has prevented the appellant from having knowledge of the sale. We are unable to find any material which would form the basis for such an assertion and we think that the decision of the learned Subordinate judge on the question of limitation is right.
3. The main argument however in appeal was on the question of jurisdiction. It is contended that although it was necessary under Section 63 to bring the proceedings which were then pending before the District1 Munsiff up to the Court of the Subordinate Judge, the Subordinate. Judge has by virtue of Section 38 jurisdiction to execute only such decrees as have actually been transferred by, the Court of First Instance to his, Court. The question then is whether Section 63 overrides Section 38 or not on the assumption that Section 63 contains within itself any clause conferring jurisdiction upon the Subordinate Judge. We think that on a common sense interpretation of the language of Section 63 this jurisdiction is certainly conferred. The language of Section 63 is:
Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realise such property and shall determine any claim thereto, shall be the Court of highest grade.
4. It is conceded for the appellant that in spite of the enactment of Section 63 the Subordinate judge in this case would have had jurisdiction to hear and determine all claim petitions. To that extent therefore it is conceded that Section 63 overrides Section 38. It is however argued that Section 63 does not give the Sub-Court any jurisdiction to sell the attached property except in execution of its own decrees. It. seems to us that this jurisdiction is necessarily included in the use of the word 'realise'. 'Realise such property' must obviously refer to bringing such property to sale. Nowhere in Section 63 is there any restriction as to how and in what manner and in what petition the Court of highest grade should realise the property and inasmuch as it is already conceded that Section 63 overrides Section 38 with regard to claim petitions we are of opinion that it overrides Section 38 in this matter also. After all Section 38 is a general section dealing with execution. It contemplates only one decree-holder applying to execute only one decree and it lays down which is the proper Court to order execution. Section 63 deals with more complicated facts in which there are not only more decree-holders than one but the same property has been attached by more Courts than one. Where the facts come within the definition of the situation as given by Section 63 it is obviously Section 63 which must be applied and Section 63, if the facts apply, cannot, we think, be controlled or governed by Section 38. We are of opinion therefore that the Subordinate Judge in this instance had jurisdiction to conduct the sale.
5. The appeal must therefore fail on both points and is dismissed with costs.