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.
4. In Thakur Parshad v. Sheikh Fakir-ul-lah (1894) 5 M.L.J. 3 : L.R. 22 IndAp 44 : I.L.R. 17 All. 106 , their Lordships of the Privy Council, at page 11, said that
The whole of Chapter XIX of the Code consisting of 121 sections, is devoted to the procedure in execution, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions.
5. This was decided under the provisions of the old Code, in which Chapter XIX corresponds to Order 21, and Section 647 to the present Section 141, the wording of Section 647, is, although slightly different, to the same effect, and is as follows:
The procedure herein prescribed shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction other than suits and appeals.
6. In Mulla's Code of Civil Procedure, 10th edition, at page 409, in the notes to Section 141, it is stated that this section does not apply to proceedings in execution, and a number of authorities decided under the present Code of Civil Procedure are quoted in support of that statement. In T. Wang v. Sona Wangdi I.L.R.(1924) 52 Cal. 559, an application for execution of a money decree, objection was taken by the judgment-debtor that the decree was satisfied out of Court, and the matter was referred to arbitration at the instance of both parties, and an award was published. The reference to arbitration was made under the provisions of Section 1(1) of the II schedule to the Code which provides that
Where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration they may, at any time before judgment is pronounced, apply to the Court for an order of reference.
7. It is to be noticed that reference to arbitration is to be made 'in any suit'. At page 563 of the judgment in the above Calcutta case, it is stated:
As has been explained in Hari Charan v. Manmatha I.L.R. (1913) 41 Cal. 1, the law is the same as it was under Section 647 of Code of 1882 which expressly excluded execution proceedings from those to which provisions relating to suits were extended. The view that special procedure in suits do not apply to execution of decrees is based on the supposition that Order 21 relating to executions is self-contained arid exhaustive as to the special subject with which it deals.
8. It was held that the Court was not competent to refer a matter in execution to arbitration. In Alagasundaram Pillai v. Pichuvier : (1929)57MLJ381 , Wallace, J., in delivering the opinion of the Court, at page 912, said:
An application under the execution Order 21 will ex facie be an application for execution. Besides this, the general trend of authority which has interpreted the leading Privy Council case on this section or rather on the old Section 647 corresponding, namely, Thakur Parshad v. Sheikh Fakir-ul-lah (1894) 5 M.L.J. 3 : L.R. 22 IndAp 44 : I.L.R. 17 All. 106 is against the idea that Section 141 applies to execution proceedings at all. The Privy Council laid down that the old Section 647 was intended to exclude from its purview the whole of the old Chapter XIX which is devoted to the procedure in execution.
9. Later on, at page 913, the learned Judge said:
It is, therefore, obvious that Section 141 does not apply to such proceedings under Order 21 as are not also proceedings under Section 47.
10. Those words appear to have caused a contention to have been put forward that if execution proceedings could be brought within Section 47, Civil Procedure Code, then the other provisions of the Code would apply to such applications. In Arunachalam v. Veerappa Chettiar : AIR1931Mad656 , the effect of the words quoted above from Alagasundaram Pillai v. Pichuvier : (1929)57MLJ381 was considered. It was pointed out that these observations were obiter and that the matter was not argued before the Court in which the observations were made, and at page 24, Sir Owen Beasley, C.J., who delivered the opinion of the Court, said:
It is beyond dispute that such an ex parte order as was passed in these execution proceedings is a decree within the provisions of Section 47, but it does not follow that the provisions of Order 9, Rule 13 apply to such a decree. If Order 9, Rule 13 applies only to suits, then the fact that such an ex parte order is a decree within the provisions of Section 47 is of no real assistance to the defendant.
11. The Court disapproved of the view that if an application in execution could be brought within the provisions of Section 47, then the other provisions of the Code applicable to suits would apply to proceedings in execution. Order 9, Rule 13 of the Code deals with setting aside of ex parte decrees. In the present application, it was not argued before me that the proceedings in the lower Court were within the provisions of Section 47 of the Code. I have however referred to the last two mentioned authorities in order to show how an attempt to get over the decision of the Privy Council in Thakur Parshad v. Sheikh Fakir-ul-lah (1894) 5 M.L.J. 3 : L.R. 22 IndAp 44 : I.L.R. 17 All. 106 and' 'other decisions has failed.
12. In the light of the authorities to which I have referred I must hold that the provisions of Order 26, Rule 4 are not applicable to execution proceedings and have not been made so by reason of the provisions of Section 141. Whilst many of the decisions in which it has been held that the general provisions of the Code do not apply to execution proceedings are in respect of those which adversely affected the parties and if they had applied would have placed them under some disability, I can see no reason to hold that a provision which would assist should be treated any differently to the others. It follows therefore that the order of the learned Subordinate Judge directing the issue of a commission warrant to obtain the evidence of two witnesses on interrogatories under the provisions of Order 26, Rule 4, Civil Procedure Code, was made without jurisdiction. This rule, in its language, empowers a Court to issue a commission in any suit. The application in the execution proceedings by the respondent to be brought on record as the transferee decree-holder was neither a proceeding in a suit nor an original proceeding as contemplated by their Lordships of the Privy Council in Thakur Parshad v. Sheikh Fakir-ul-lah (1894) 5 M.L.J. 3 : L.R. 22 IndAp 44 : I.L.R. 17 All. 106
13. Learned Counsel on behalf of the petitioner had a further objection to the correctness of the order of the learned Subordinate Judge, namely, that he had no jurisdiction to direct the evidence of witnesses to be taken by interrogatories. It is unnecessary for me to deal with this further objection by reason of the conclusion to which I have arrived regarding the applicability of Order 26, Rule 4 to proceedings in execution.
14. The result is, this Civil Revision Petition is allowed and the order of the learned Subordinate Judge set aside. The petitioner is entitled to his costs.