1. This rule is directed against the order of Babu D.N. Pal, Munsiff of Krishnagar, dated 15th July 1935, in which he directed that a certain execution case should be dismissed for non-prosecution. The facts of the case appear to be that the petitioner's mother obtained a money decree against the opposite party on a promissory note in the Court of the first Munsif at Krishnagar. This decree was then put into execution, but during the course of the execution proceedings a brother of the judgment-debtor and certain other people filed a claim case in respect of the property against which the decree was sought to be executed. This claim case was allowed on 17th November 1934 and it is contended on behalf of the opposite party that, as a result of this claim case being allowed, there remained no property against which execution could be taken.
2. On 1st April 1935, the petitioner applied for amendment of the execution petition by including therein certain other property not within the jurisdiction of the Krishnagar Courts. The Munsiff allowed the amendment on 30th April 1935. On 20th June 1935 an application was made for transmitting the decree to the Court of the Munsiff at Alipur for execution but with reference to this application on 12th July 1935 the learned Munsiff held that the procedure which the decree-holder desired to adopt was irregular and he directed that the decree-holder should file a definite application stating whether he wished the decree to be sent for execution to the Alipur Court. Such an application was filed and on 15th July 1935, the learned Munsiff directed that the execution case should be dismissed and that the decreeholder should make a fresh application in proper form for a transfer of the decree for execution. It is against the latter order that this rule has been obtained.
3. It has been urged by the learned advocate for the petitioner that the learned Munsiff acted illegally in dismissing the execution case and that the effect of his order has been to compel the petitioner to file a fresh application for execution in the Alipur Court which, having regard to the circumstances of the case, may possibly be held to be time-barred. A preliminary objection has been urged with reference to this rule inasmuch as it is contended that no application lies for the revision of the order dated 15th July 1935 because no appeal with reference to the order in question was preferred to the District Judge. It appears however that no appeal lies with reference to an order of this nature. Such an order does not fall within the scope of those sections of the Civil Procedure code which relate to appealable orders and in no circumstances can it be held to be a decree, and in any event, having regard to the provisions of Section 2 (2), Civil P. C., the order from its very nature appears to be an order for dismissal for default. We are not prepared to accept the argument which has been urged in connexion with this preliminary objection.
4. The learned advocate for the opposite party next contends that the order of the learned Munsif dated 15th July 1935 was correct inasmuch as the Court of the Munsif of Krishnagar, after the passing of the order of 3rd April 1935, was functus officio in view of the fact that the only property against which execution could then be taken was situated outside the jurisdiction of the Court. With regard to this argument it must be remembered that on 3rd April 1935 the learned Munsif had merely permitted the amend ment of the petition for execution. As the matter then stood before him, therefore, there was a pending application for the execution of a decree passed by this Court and such application was with a view to execution proceedings being taken against certain property outside his territorial jurisdiction.
5. The learned advocate for the opposite party relies in support of his contention upon a decision of the Full Bench of this Court in Prem Chand Dey v. Mokhoda Debi (1890) 17 Cal 699 (F B) in which it was held that a Court had no jurisdiction in execution of a decree to sell property over which it had no territorial jurisdiction at the time it passed the order of sale; with reference to this particular case it was however pointed out by Mitter, J., in Sreenath Chakravarti v. Priya Nath Bandopadhya 1931 Cal 312 that the case in question was no authority for the proposition that the Court which passed the decree had no jurisdiction to entertain the application for execution. This is a question which was discussed at great length in Sreenath Chakravarti v. Priya Nath Bandopadhya 1931 Cal 312 and it was held by Mukerji and Mitter, JJ., that a decree-holder had always had a right to apply as of course to the Court which passed the decree for its execution even if it be in respect of property outside the territorial jurisdiction of such Court and even if execution by such Court could be no more than execution by transmission to another Court. Having regard to the clear views expressed by Mukerji and Mitter, JJ., in the above case we are of opinion that there is no force in the contention put forward by the learned advocate for the opposite party with reference to this matter.
6. With reference to the order dated 12th July 1935 it appears to be some-what unfortunate that the learned Munsif should have directed the decree-holder to file a fresh petition as directed by him in the concluding portion of his order. In view of the fact that a petition for transmitting the decree to the Court of the Munsif at Alipur appears to have been made on 20th June 1935 the circumstances indicate that even if the decreeholder had acquired certain papers other than those mentioned in Order 21, Rule 6, Civil P. C., to be transferred to Alipur it would have been sufficient if the learned Munsif had directed a transfer of the decree with such papers as might legally be sent, having regard to the provisions of Order 21, Rule 6 of the Code. The procedure which was actually adopted in the case appears merely to have the effect of delaying the execution proceedings and to have placed unnecessary difficulties in the way of the decree holder. As regards the order dated 15th July 1935 the learned Munsif appears to have been under a misapprehension in supposing that the execution proceedings could not be allowed to remain pending in his Court after the decree had been transferred to another Court for execution. With regard to this point Mukerji, J., points out in Sreenath Chakravarti v. Priya Nath Bandopadhya 1931 Cal 312:
It may be stated here that even after transfer, the transferring Court retains jurisdiction over the execution, though for certain specified purposes only.
7. Further, on the same point, Mitter, J., makes the following observations:
If an application for execution is made to the Court which passed the decree that Court will transmit the same to the Court where immoveable property sought to be sold is situate along with the other papers required by Order 21, Rule 5 or Rule 6 of the Code, and then the latter will make the order for sale and it will not be necessary in such a case to have a fresh application for execution before the Court where immoveable property sought to be sold in execution is situate.
8. Having regard to the consideration mentioned above we are of opinion that the order dated 15th July 1935 is wrong. This rule must therefore be made absolute with costs and the order against which it is directed is set aside. The petitioner should make such further application as he considers necessary with a view to the transfer of the requisite papers to Alipur. The hearing fee is assessed at three gold mohurs.
S.K. Ghose, J.
9. I agree.