1. This is an appeal by the judgment-debtor and arises out of an application made in the course of the execution of a mortgage decree. It appears that on 19th June 1908 appellant's father one Mohammad Abru borrowed a sum of Rs. 200 by executing a mortgage bond, from the respondents' father Madon Mohan Das. On 21st November 1914 a decree was passed for a sum of Rs. 1,083-9-3 and on 5th June 1917 the mortgaged properties were directed to be sold. An application was made for a personal decree under the provisions Order 34, Rule 5, Civil P. C, and on 29th November 1919 a personal decree for a sum of Rs. 997-11-4 was passed by a Munsif who it is found had no jurisdiction to pass such decree. On 21st November 1922 an execution case was started by the decree-holder but it was ultimately dismissed. A further application for execution was made on 19th November 1925 before the second Munsif's Court at Sylhet, the said Munsif's Court being at this time presided over by a Munsif who had pecuniary jurisdiction only up to Rs. 1,000. On 31st January 1928 the appellant's father Mohammad Abru died; and on 15th November 1928 a petition for execution was filed by one of the respondents-respondent 3 against Abru who was then dead and thereafter an execution case was started.
2. On 27th November 1928 the heirs of the deceased judgment-debtor Mahammad Abru were substituted but it is said that no notice of the execution case was served on all the heirs. The execution case was ultimately dismissed. On 1st July 1931 the present execution case was launched by the decree-holder. To this execution the judgment-debtors objected on the ground that it was barred by the statute of limitation. The argument on this head is based on the contention that the previous application for execution, which was filed on 19th November 1925 having been made before the second Munsif's Court of Sylhet, the Court which passed decree but the pecuniary limits of whose jurisdiction had in the meantime been altered from Rs. 2,000 to Rs. 1,000, cannot be regarded as having been made in the proper Court and therefore this application cannot be availed of for the purposes of limitation. This contention has been overruled by the Courts below which have held that the execution application was not barred.
3. This second appeal has been preferred to this Court against this order allowing the execution to proceed; and it is contended that, having regard to the language of Section 37, Civil P.C., the Courts below should have held that the application for execution of November 1925 was an application which was not made before the proper Court, because, it is said, the Court which passed the decree has ceased to have jurisdiction to execute the decree for the Court which passed the decree, although it was the second Court of Sylhet yet at the time the decree was passed was presided over by an officer who had jurisdiction to entertain the suit, namely, a Munsif who was invested with powers to try suits up to the value of Rs. 2,000. It is contended that in view of the plain language of 6. 37 the Courts below were wrong in not giving effect to the contention of the judgment-debtor. The question is no doubt of some difficulty and speaking for myself I do not know what view I might have taken of the matter if it has been res integra. The thing that matters is as has been already stated, that it seems to me to be decided in one direction and I can see nothing which would justify me in deciding this in a way inconsistent with what has been determined by the decision to which I shall presently refer.
4. The case which is directly in point and which has been cited by the learned advocate for the respondents is a decision of Sir Edward Chamier the Chief Justice of the Patna High Court and reported in the ease of fswari Prasad Singh v. Farkut Hussin (1917) 2 Pat LJ 113. There the facts were almost similar to the facts of the present case. A decree was passed in that case by the first Munsif of Gaya who was invested with jurisdiction to try suits up to Rs. 2,000 on 25th February 1911. An application for execution was made on 28th June 1913, to his successor who was not invested with jurisdiction to try cases over Rs. 1,000. A second application for execution was made to the Court on 9th June 1915. It was hold that the first application was made to the proper Court and therefore the second application was not barred by limitation.
5. The learned Chief Justice with whom Jwala Prasad, J., agreed was of opinion that notwithstanding the provisions of the Civil Procedure Code it appeared that there had been two previous decisions of the Calcutta High Court in the cast) of Lutchman Pandeh v. Maddan Mohan (1881) 6 Cal 513 and Kartick Nath v. Tilukdhari Lal (1888) 15 Cal 667 which seemed to take the view that the Court which passed the decree does not cease to exist merely because some of the properties in respect of which execution was intended to be levied had been transferred to a place outside the local limits of the Court which passed the decree. In other words it does not cease to exist merely because it has lost territorial jurisdiction over the immovable properties which formed the subject-matter of execution after the decree. The Chief Justice points out thus:
The District Judge has taken the view that the first application for execution was not made to the proper Court apparently because at the time of the application the presiding officer would not have had jurisdiction to try the suit in which the decree was passed. This view is untenable if the decisions in Lutchman Pandeh v. Maddan Mohan. (1881) 6 Cal 513 and Kartick Nath v. Tilukdhari Lal (1888) 15 Cal 667 are correct. The Civil Procedure Code has been amended frequently since these decisions were pronounced and a new Code has been passed in place of the Code of 1882, but the provision which was construed in the decisions referred to has never been touched nor have either of the decisions so far as we are aware been overruled though there are eases in which have been distinguished in the Calcutta High Court. In my opinion, we ought to follow those two decisions and if we follow them we must hold that the first application for execution made on 26th June 1913, was made to the proper Court and that the present application for execution which was made on 9th Juno 1915, was made within time. The decision to which we have referred do not appear to have been brought to the notice of the learned District Judge.
6. In effect the learned Chief Justice held that the Court which passed the decree did not cease to exist merely because the pecuniary limits of its jurisdiction were altered. It is argued for the appellant that the cases on which the learned Chief Justice of Patna relied were cases which dealt with want of or absence of territorial jurisdiction in the executing Court and not in the absence of pecuniary jurisdiction in the said Court. It is difficult to draw a distinction of this kind between these cases Question has also been raised with reference to the absence of pecuniary jurisdiction by Sir John Wallis, Chief Justice of Madras, in the case of Seeni Nadan v. Muthusamy Pillai AIR 1920 Mad 427 and the learned Chief Justice has given cogent reasons for holding that Sections 37 and 38, Civil P.C., must be read in the sense that Section 37 by the use of the word include' does not take away from the jurisdiction of the Court which passed the decree the power to execute the decree. As the learned Justice points out:
Section 37 provides that the words 'Court which passed a decree' shall be deemed to include: (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction the Court of first instance, and an argument has been based on this clause. Now it may well be that under Sections 37 and 38 the appellate Court has no jurisdiction to execute its own decree, but that is not because it has no such jurisdiction is excluded by the use of the word 'include' as has been argued, but because it had no such jurisdiction under Section 362 of the Code of 1859, and it may well be questioned, having regard to the presumption already referred to, whether when that section was eliminated in re-drafting and the matter was dealt with in Sections 649 and 123(now 37 and 38), there was any intention to confer on the appellate Court jurisdiction which it had not till then possessed. We have however to deal with Clause (b), and where the decree holder had a valuable right under the Code of 1859 to apply to the Court which passed the decree at least for execution by way of transmission, and where the present Code provides expressly that a decree may be executed by the Court which passed it, the contention that this important right must be held to have been taken away because of the provision in Section 37 that these words shall be deemed to 'include' another Court appears to me to be altogether untenable. It may be that in some rare and exceptional instances the category of things 'included' in a definition may bo held to bo exhaustive, but ordinarily as observed in Stroud's Dictionary, it is 'a phrase of extensive and not of restrictive jurisdiction, and it cannot, in my opinion, be used here to deprive the decree-holder of the important right which he had till then of applying in all cases in the first instance to the Court which passed the decree, especially having regard to the fact that the section itself was inserted when the Code was in process of re-drafting and re-arrangement, when, as I have already said, there in presumption, against alterations by implication only,
7. Therefore it has been held on these authorities that the Court which had passed the decree had power to execute the decree notwithstanding the provisions of Section 37 and we are of opinion that the Court which passed the decree does not cease to exist merely because the pecuniary jurisdiction of the said Court has altered. It seems to us that the Court below was correct in taking the view that the application of 1925 was made to the proper Court and it was sufficient to save limitation. Another point that was argued is that even if that is so the application of 1928 was not an application in accordance with law because it was filed against a dead person Mahammad Abru. The rule, that when a suit is filed against a dead person it is a nullity, does not apply to execution proceedings. The decree was rightly obtained against Mahammad Abru and the application for execution was presented against him at the time in ignorance of his death. The decree was a good decree against Abru and as soon as it was brought to the notice of the decree-holder that Abru was dead he made an application for substitution of the heirs of the deceased in the execution proceedings. We do not see anything irregular in the application of l5th November 1928. These two applications are in order and there is no question that the applications of the decree-holder were in time. The result is that this appeal fails and must be dismissed. There will be no orders as to costs.
M.C. Ghose, J.
8. I agree.