Lakshmana Rao, J.
1. This appeal arises out of an application for transmission of the decree in O.S. No. 72 of 1922 on the file of the Subordinate Judge of Cocanada for execution to the District Court of South Arcot and the questions for determination are (1) whether the application is barred by limitation against the appellant (defendant 3) and (2) whether the decree is executable against him. Respondent 1 is the decree-holder and the suit was for recovery of Rs. 28,374-11-9 due under two promissory notes executed by the appellant and respondents 2 and 3. The appellant pleaded that he was a surety and the suit was decreed on 19th February 1923 as follows:
It is ordered and decreed that the plaintiff (respondent 1) do proceed against defendants 1 and 2 (respondents 2 and 3) in the first instance and against defendant 3 (appellant) in case the amount cannot be releted from defendants 1 and 2 and do recover Rs. 26,777-4-9 with further interest and proportionate coats.
2. A sum of Rs. 3,652-4-1 was realised by 1926 by executing the decree against respondents 2 and 3, and two applications were filed by the decree-holder on 18th January 1927 for transmission of the decree to the District Munsifs of Kovvur and Rajahmundry for simultaneous execution against respondents 2 and 3. The applications were ordered on 20th January 1927 and decree copies were transmitted to the District Munsifs of Kovvur and Rajahmundry. No steps were however taken at Kovvur or Rajahmundry and an application for transmission of the decree to the Sub-Court of Vizagapatam for execution against respondents 2 and 3 was filed in the Sub-Court of Cocanada on 20th January 1930 (18th and 19th January being holidays). It was alleged in the petition that the decree copies transmitted to the District Munsifs of Kovvur and Rajahmundry had been returned, though in fact only the decree copy sent to the District Munsif of Kovvur had been returned, and the application was defective in other respects as well. So it was returned on 23rd January 1930 for amendment, and the decree holder applied for and obtained time for that purpose on several occasions. The application was returned for the last time on 9th October 1930 and it was not represented thereafter. The application out of which this appeal arises was filed on 27th September 1932 for transmission of the decree to the District Court of South Arcot for execution against the appellant and respondents 2 and 3, and the latter did not appear. It was not alleged in the application that the decree amount cannot be realised from respondents 2 and 3 and the appellant pleaded that the decree cannot be executed against him until then. Even otherwise he contended that the application of 20th January 1930 was not made to the proper Court and cannot save limitation, but the Subordinate Judge overruled the plea of limitation on the ground that the present application was filed within three years of the prior application. The contention that the prior application was not made to the proper Court and cannot save limitation was not considered, and though evidence was not led, and there is nothing on record to show that the decree amount cannot be realised from respondents 2 and 3, the Subordinate Judge negatived the other plea on the ground that the decree does not say that the decree-holder should exhaust the properties of respondents 2 and 3 before proceeding against the appellant, and that the time for executing the decree against the appellant had arisen in 1932 when the decree, holder was obliged to take out the execution against him.
3. Hence this appeal and it was argued first, that assuming the decree to be executable against the appellant, the application of 20th January 1930 cannot prevent time from running and the present application was barred by limitation against him. Article 182, Clause 5, Limitation Act, which was relied upon by the decree-holder, allows three years from the date of the final order on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree, and it was contended on behalf of the appellant that the application of 20th January 1930 was not even made to the proper Court within the meaning of that clause. 'Proper Court', according to Expln. 2 to Article 182, means the Court whose duty it is to execute the decree, and it was urged that once the decree is transmitted to another Court for execution, that Court alone can execute it and the Court which passed the decree is not competent to entertain an application for transmission or execution, until the decree is returned to it with a certificate of non-satisfaction. This contention was not dealt with by the Subordinate Judge, though it was pressed before him and a finding had to be called for as to whether the decrees transmitted to the District Munsifs of Kovvur and Rajahmundry had been returned to the Subordinate Judge of Cocanada by 20th January 1930. It is now agreed that, as found by the Subordinate Judge, only the decree copy sent to the District Munsif of Kovvur had been returned, and the question is whether by reason of the non-return of the decree copy by the other Court, the Sub-Court of Cocanada was not competent to entertain an application for transmission of the decree to the District Court of South Arcot. This question was decided in Mahadum Beg v. Muhammad Meera Sahib : AIR1928Mad493 in which all the previous decisions were considered and 'we see no reason for dissenting from the view taken therein that in such cases the Court which passed the decree is competent to transfer the decree to a third Court for execution. To the same effect are the decisions in K.K. Deb v. N.L. Chowdury A.I.R. 1927 Rang 258 and Kanti Narain v. Madan Gopal A.I.R. 1935 Lab 465 and an examination of the relevant provisions of the Civil Procedure Code leads to the same result.
4. There is nothing in the Code to prevent simultaneous execution of a decree in more than one Court, though it is a matter for the discretion of the Court to permit or refuse concurrent execution, and it is clear from the provisions of Order 21, Rule 26, which requires the transferee Court to stay execution to enable the judgment-debtor to apply to the Court which passed the decree for an order to stay execution or for any other order relating to the decree or execution which might have been made by such Court if execution had been issued thereby or if application for execution had been made thereto, that the Court which passed the decree retains control of the execution proceedings. Section 46, which relates to precepts, points to the same conclusion and the power to order simultaneous execution or send the decree to another Court for execution is vested in the Court which passed the decree. Section 42 does not empower the transferee Court to order simultaneous execution or send the decree to another Court for execution, and as pointed out in Mahadum Beg v. Muhammad Meera Sahib : AIR1928Mad493 and Subba Rao v. Ankamma A.I.R. 1933 Mad 110 the decision of the Privy Council in Maharajah of Bobbili v. Raja Narasaraju A.I.R.1916 P.C. 16 does not touch this question. The question there was whether an application would lie to the District Court of Vizagapatam for sale of property attached by the District Munsif of Parvatipur, and as observed already, it is for the Court which passed the decree to decide whether in the circumstances of any case simultaneous execution against different properties in different Courts should be ordered or the proceedings should be withdrawn from one Court and transferred to another Court. An application for either relief would therefore lie only to the Court which passed the decree and it would be the proper Court within the meaning of Expl. 2 to Article 182. The Sub-Court of Cocanada was thus the proper Court and the application of 20th January 1930 was an application to take some step-in-aid of execution. But what is material under the amended Article 182, Clause 5 is the date of the final order on the application and not the date of the application, and it remains to consider whether the order of 9th October 1930 granting further time for remedying the defects is such an order. The order need not in our opinion be an order on the merits or a judicial determination of the matter involved in the application, but as pointed out; in Chidambara Nadar v. Rama Nadar A.I.R. 1937 Mad 385 in which the previous decisions were considered, the words 'final order' imply that the proceeding has terminated so far as the Court passing it is concerned. It cannot mean the 'last order' in point of time, irrespective of whether it terminates the proceedings so far as the Court is concerned, and the order of 9th October 1930 merely granted further time for remedying the defects. It did not terminate the proceeding and the application was not represented. There was thus no final order within the meaning of Article 182, Clause 5 and it follows that the application is barred by limitation as against the appellant.
5. As regards the second question, the decree provides that the appellant should be proceeded against only in case the amount cannot be realised from respondents 2 and 3 and it was not alleged in the application for transmission that the amount cannot be realised from respondents 2 and 3. No evidence was led about it nor is there anything on record to show that the amount cannot be realised from respondents 2 and 3. The assumption of the Subordinate Judge that the decree, holder must have been obliged to apply for execution against the appellant in 1932 is unwarranted, and it follows that the appellant cannot be proceeded against. In the result the appeal is allowed and the application will stand dismissed against the appellant with costs throughout. The advocate's fee is in the circumstances of the case fixed at Rs. 250.