1. This appeal is barred under the provisions of Section 102, Civil P.C.; but inasmuch as the ground taken can be equally urged in revision, this is a matter of only academic interest. The point was argued in the Court below as one of limitation though it is really one of jurisdiction. The last day for applying for execution was 11th May 1941. The application upon which the present execution proceedings are going on was actually filed on 10th May 1941. Therefore no question of limitation could possibly arise.
2. The point of jurisdiction arises in this way: The decree was passed in the small cause Court and has been transferred for execution to the ordinary Court. I do not think the question of jurisdiction is in any way affected by the fact that at this particular time the same officer happened to be presiding over both the Courts. The application for transfer of the decree was made on 7th April 1941 before it was barred by limitation. Under Order 21 Rule 10 an application for execution has to he made by the decree-holder. The question is whether the failure of the Court which passed the decree to send it in time is a mere irregularity or whether it affects the jurisdiction. Clearly if the decree was never sent at all, the other Court would have no jurisdiction to proceed to execute it.
3. Now if this were a matter affecting the jurisdiction, it would clearly lead to most extraordinary results. Under Order 21 Rule 6 the duty of sending the decree for execution is placed upon the Court which is bound to send certain papers and the decree-holder is not in any way responsible for any sort of delays that might take place, and the clerks who had to prepare these papers are in no way under his control. It was decided by a learned Judge of this Court in 1. Loke Nath Roy v. Mahim Chandra De : AIR1931Cal649 that a matter of this kind is a mere irregularity. I myself am content to follow that decision. The appeal is dismissed with costs--hearing fee one gold mohur.