1. The only question in this appeal against the judgment of Panchapakesa Aiyar J. in C. M. S. A. No. 47 of 1947 is whether an execution, petition filed by the respondent is within time. Both the learned District Munsif of Nellore, as well as the District Judge of Nellore held that the application was barred. In the above Civil Miscellaneous Second Appeal, Panchapakesa Aiyar J. held that it was in time. Hence this appeal by the judgment-debtor.
2. Execution is sought of the decree in O. 8. No. 294 of 1931 on the file of the District Munsif of Nellore. The decree was passed on 30th October 1931.
In E. P. No. 597 of 1936, the District Munsifs Court transmitted the decree to the court of the Subordinate Judge for execxition on 21-4-1936. Part of the decree amount was paid to the decree-holder as a result o proceedings taken in O. S. No. 22 of 1934 on the file of the Sub Court and on 10-4-1939, a certificate of part satisfaction was sent to the District Munsifs Court.
The decree, however, was not sent back. Hence on 6-4-1942 the decree-holder made an application to the Sub-Court for retransmission of the decree to the District Munsifs Court. This petition, however, was rejected on 22-6-1942 as incompetent. Eventually, by September 1944, the decree appears to have been received back in the District Munsifs Court.
On 20-10-1943, an execution petition was filed in the court of the District Munsif, Nellore, which was numbered as E. P. No. 135 of 1945. It is this petition which is said to be barred by time.
3. It is clear that this petition would be within time if the application dated 6-4-1942 made by the decree-holder to the Sub-Court for retransmission of the decree of the District Munsifs Court was a proper application, because that application was disposed of by an order dated 22-6-1942, and that would furnish a fresh starting point.
The contention on behalf of the judgment-debtor was, and is before us, that that application was not valid, because the Sub-Court was 'functus officio' immediately the part satisfaction certificate was sent by it to the District Munsifs Court, and thereafter it had no jurisdiction to entertain the application. Another objection to the validity of the application was that it was not accompanied by the vakalat of the advocate who appeared for the decree-holder.
4. The first objection is sought to be supported by a reference to the observations of the Supreme Court in a recent judgment in 'Mohanlal Goenka v. Benoy Krishna', : 4SCR377 (A). In that case, the decree of a High Court was transmitted to a mofussal court for execution. In February 1932, a document purporting to be a certificate of non-satisfaction was sent by the executing court to the High Court, but the decree itself was not re-transmitted. Despite this fact, the decree-holder made a second application for execution in March 1932 to the transferee court. Notice was served upon the judgment-debtor. But he preferred no objection that the court had no jurisdiction to execute the decree.
In dealing with this conduct of the judgment-debtor, the learned Ghulam Hasan J. who delivered the judgment of the court, observed that the judgment-debtor could have pointed out that the transferee court was 'functus officio' after sending the certificate under Section 41, Civil P. C. and had no further jurisdiction to sell the property in execution; but no such objection had been raised.
It is obvious that this observation cannot be of any assistance to the appellant in this case. In the present case, the decree-holder in his application pi April 1942 did not seek to execute the decree in the Sub-Court. All that he wanted was that the decree may be retransmitted to the District Munsif's Court for further execution. We do not think that the above observation of the Supreme Court is authority for the position that transferee court is 'functus officio' ana ceased to have jurisdiction even to entertain an application for retransmitting the decree to the Court which passed the decree.
The decision in 'Vellappa v. Subrahmaniyam', AIR 1915 Mad 920 (B) is, we think, sufficient authority for the position that so long as the decree is with the transferee court, an application made to that court to transmit the decree to the court which passed the decree is not void. In that case, no steps were taken by the decree-holder within six months of the transmission of the transferee court to execute the decree. Rule i6l(a) of the Civil Rules of Practice provided that in such a contingency the transferee court should return the decree to the transferring court. But this was not done, and the decree continued to remain with the transferee court.
An application was then made by the decree-holder to send back the decree to the transmitting court. It, was contended that such an application was void 'abinitio'. But the contention was overruled. This decision was no doubt distinguished by Ramesani J. in 'Mahomed Noorulla v. Hasa-rath Kibulai', AIR 1926 Mad 1209 (C). But there even the decree had been sent back to the transmitting court. We therefore hold that the application made to the Sub-Court in April 1942 was a proper application.
5. The next objection is founded on the allegation that the application of 1942 was not accompanied by a vakalat in favour of advocate who appeared for the decree-holder. That objection has been met by relying upon a vakalat which was admittedly filed by the advocate in the proceedings taken in the Sab-Court in O. S. No. 22 of 1934, as a result of which part payment had been made to the decree-holder. It has been found by the learned Judge, Panchapakesa Aiyar J. and we agree with him, that this vakalat is of sufficient amplitude to confer a right on the advocate to appear in further execution proceedings, we see no substance in this objection either.
6. Learned counsel for the appellant sought to raise another objection, viz., that the present execution application, via., E.P. No. 135 of 1945 was also not accompanied by a vakalat in favour of the decree-holder's advocate. This point has not been dealt with by either of the two courts below. If this objection had been really pressed in time, the decree-holder could easily have remedied the defect by filing a vakalat.
7. The appeal fails and is dismissed with costs.