1. This appeal has been preferred by three of the judgment-debtors, namely Manmatha Pal Choudhury, Amiya Pal Choudhury and Ranjit Pal Choudhury, and is directed against an order of the Subordinate Judge of Nadia, dated 5th July 1938. A preliminary objection has been taken that no appeal lies against the order complained of. A rule however in the alternative was issued by this Court. In order to decide not only the question as to whether the appeal is competent or not, but also the appeal on the merits, the following facts are necessary.
2. One Jagannath Khan and others, whom we shall hereafter call the Khans, took a loan of Rs. 1,80,000 from the Faridpur Loan Office in the year 1924. They executed a mortgage bond by which touzies Nos.336/6 and 441/6 of the Nadia Collectorate as also other properties were hypothecated. In 1931 the said Loan Office instituted a suit on their mortgage in the Original Side of this Court. A preliminary decree was passed on 9th July 1931 and the final decree on 9th January 1933. This decree was put into execution, and at the execution stage the judgment-debtors wanted time to pay up the decretal amount. There was an agreement between them and the Loan Office by which time was given to the former to pay up the decretal amount on their giving as further security for the decretal amount three decrees for rent which they had already obtained against their tenants as also the growing rents. This agreement was given effect to by the order of the Court dated 5th December 1934 and the sala of the mortgage properties was postponed. The judgment debtors however could not pay up the decretal amount within the extended period with the result that the sale was held. At the sale which was held on 27th February 1937 the respondent Sarada Prosad Nath purchased the properties. It is not disputed that he purchased touzis Nos. 366/6 and 441/6 of the Nadia Collectorate, but at one stage there was the question as to whether he had purchased the rights of the Khans to the rents which accrued in their favour up to that date from their tenants who held lands in the said two touzis. For the rents which accrued up to the year 1936, the Khans instituted a suit against their tenants who are ten in number, three of them are the Pal Choudhuris, the appellants before us. The rent suit was decreed on 15th April 1936 for a sum of Rs. 26,884. Sarada Prosad Nath claims that by reason of his auction purchase on 27th February 1937 the right to this rent decree has also vested in him. This rent decree was obtained in the Court of the Additional Subordinate Judge of Nadia, in respect of a patni tenure situated in the District of Nadia, which was held by the defendants in the rent suit, under the proprietors of the aforesaid touzis. The respondent Sarada made an application before the Court of the Additional Subordinate Judge of Nadia who had passed the decree for being substituted in place of the decree-holders, the Khans. This application was granted by the learned Subordinate Judge. An application for review was made by the judgment-debtors but that application has been dismissed. The question whether Sarada is entitled to be substituted in place of the original decree-holders, namely the Khans, is now finally concluded between the parties to this appeal. It is accordingly, as has been conceded by Mr. Bose for the appellants, no longer open to the parties to raise the said question.
3. The question involved in this appeal rests on the following facts. On 10th March 1938 Sarada Prosad Nath made an application for execution of the said rent decree in a tabular form before the Additional Subordinate Judge, Nadia. This was numbered as Rent Execution Case No. 5 of 1938. In column 2 he gave the names of the judgment-debtors, ten in number. In column 7, the amount due to him under the aforesaid rent decree is stated. In column 9 he stated that he wanted to proceed against seven out of the ten judgment-debtors, the last three being the appellants before us. In column 11 he prayed that
orders may be passed for transmission of a certificate of non-satisfaction to the Subordinate Judge's Court, Alipur, District 24-Perganas, for realization of the amount due on this decree.
4. In this tabular statement the place of residence of the three judgment-debtors appellants is stated to be within the District of Nadia. With regard to some of the other judgment-debtors, it is distinctly stated that they reside within the jurisdiction of the Nadia Court, but with regard to some others their places of residence are not given. It is, however, not stated in the application that any of other judgment-debtors resides within the jurisdiction of the Alipur Court. On the same day, 10th March 1938, the Court registered the said application, and directed the matter to be put up on 12th March, 'for the preparation of the certificate and for orders.' On 12th an order was passed transferring the decree to the Court of the Subordinate Judge, Alipur, for execution.
5. These proceedings were ex parte proceedings. No notice was issued to the judgment-debtors when the order for transfer was made, and the judgment-debtors had accordingly no opportunity to come and contest those proceedings for transfer. On 5th April 1938, the judgment-debtors appellants before us, however, filed an application before the Additional Subordinate Judge, in the Rent Execution Case No. 5 of 1938 which was the case in which the order for transfer was made. This application was headed, as an application under Order 21, Rule 16 and Section 47, Civil P.C. In this application the facts are stated in some detail, and the Court was asked, amongst other things, in para. 25 of the said application, to recall the order transferring the decree for execution to the Alipur Court. This part of the case was placed upon two grounds which are grounds Nos. 5 and 9 namely that the decree-holder got the order for transfer and the certificate of non-satisfaction from the Court fraudulently and without any notice on the judgment debtors, and that in any event, the order for transfer ought not to have been made, as there was property of the judgment-debtors within the jurisdiction of the Nadia Court, which was sufficient to satisfy the said rent decree.
6. The scope of this application was however wider. By the application the judgment-debtors wanted the Court to revise its previous order by which the respondent Sarada was substituted as the decree-holder in the place of the original decree-holders, namely the Khans, and for this reason the application was headed as one under Order 21, Rule 16 also. Another ground runs thus: 'for that the application for execution is bad in law and is otherwise not maintainable.' Analyzing this application it comes to this: The judgment-debtors said firstly, that the respondent ought not to have been substituted in place of the original decree-holders, their ground apparently being that he had not purchased the said rent decree; secondly, that the order of transfer which had been made by the Court on 12th March 1938 was not a good order, ought to be set aside by the Court itself, and the decree recalled from the Alipur Court and thirdly that the execution should not be allowed to be proceeded with as the application for execution was defective and otherwise bad. After this application was filed, the learned Additional Subordinate Judge in whose Court this was filed registered it as a miscellaneous case and directed notice to be issued on the respondent. Thereafter, the Additional Court of the Subordinate Judge, Nadia, was abolished and the business of that Court was taken over by the permanent Subordinate Judge of that place. The permanent Subordinate Judge dealt with this application finally by his order dated 5th July 1938. He held (1) that the question relating to the substitution of the respondent cannot be reopened, (2) that as the application filed by the appellants on 5th April 1938 purported to be under Section 47, Civil P.C., that application was not enter-tainable by him, and it could only be entertained by the Alipur Court which was then executing the decree, it having been already transferred to that Court, and (3) that even if that part of the said application which asked for reconsideration of the order of the Additional Subordinate Judge dated 12th March 1938 be considered as an application for review, he could not entertain the same as no notice under the provisions of Order 47, Rule 4 of the Code had been issued by the Additional Subordinate Judge who had passed the original order. He accordingly rejected the said application.
7. This appeal has been confined only to that part of the said order dated 5th July 1938 by which the learned Subordinate Judge refused to reconsider the order of transfer made by the Additional Subordinate Judge on 12th March 1938. A preliminary objection has been raised by the respondent to the effect that no appeal lies to this Court. The objection is founded on the ground that the learned Subordinate Judge refused the application which, in essence, was an application for review. The argument is that the appellants, in essence, asked for a review of the order, dated 12th March 1938. So far as this part t of the case is concerned, it was treated by the Subordinate Judge as an application for review and was refused by him on the; footing that it was not entertainable by him. We will have to consider whether this contention is correct. In the first place the application in question does not purport to be an application under Order 47, Rule 1. The judgment-debtors said in this application that the said order was passed ex parte and it was a wrong order on the ground amongst other that the order for transfer was made not in compliance with the provisions of Clause (b) of Section 39, Civil P.C. The question therefore depends upon the question whether an application for transfer of a decree, to the Court which passed the decree, can be regarded as an application relating to the execution of the decree, and secondly whether an objection by a judgment-debtor to such an application is an objection which can come within the purview of Section 47 of the Code. In our judgment, the application comes under Section 47 of the Code and the judgment-debtors rightly headed their application as an application under Section 47. When an application for transfer is made to the Court which passed the decree
that Court does not function merely as a sort post office for receiving the application for transfer of the decree and for transmitting them to the Court, within whose jurisdiction immovable property sought to be sold is situate, for execution: Sreenath Chakravarty v. Priya Nath : AIR1931Cal312 .
8. An application for transfer of a decree passed by a muffasal Court is a step-in-aid of execution. By that application, the decree-holder asks the Court which passed the decree to assist him for the purposes of carrying further proceedings to realize his decree. An application for transfer is accordingly an application relating to execution of a decree. The Court to which the application for transfer is made does not merely function as a post office but it has judicial duties to perform. It is required by statute to exercise judicial discretion. An objection raised by a judgment-debtor opposing the transfer will be an objection relating to execution of the decree. The words 'relating to execution of the decree' used in Section 47, are wide enough to cover the case. We accordingly hold that the order which has been passed by the Court is an 'order coming within the scope of Section 47 of the Code, and the appeal before us is competent. The view which we are taking is supported by the decision in Bhabani Charan Dutt v. Pratap Chandra Ghose (1904) 8 C.W.N. 575. In this view of the matter the rule issued by this Court is discharged on the ground that an appeal lies to this Court.
9. We will now deal with the merits of the appeal. We have already held that that part of the objection raised by the appellants which relates to the transfer of the decree is an objection which comes within the purview of Section 47. It is an established principle that a judgment-debtor can prefer objections under Section 47 at any stage of the execution proceedings. Those objections have to be determined on their merits, unless a particular objection had been adjudicated upon by the Court earlier, or unless the judgment-debtor is debarred from agitating the particular objection by reason of the principles laid down in Mungal Pershad Dichot v. Girija Kanta Lahiri (1882) 8 Cal 51. The particular objection, namely that the decree ought not to have been transferred to the Alipur Court as the judgment-debtors had properties within the jurisdiction of the Nadia Court, sufficient to satisfy the decree, had not been adjudicated upon at a previvious stage of the proceedings, nor can the principles formulated in Mungal pershad Dichot v. Girija kanta lahiri 91882) 8 Cal. 51 be applied, for the order of transfer made on 12th March 1938 was made ex parte, and without giving the judgment-debtors an opportunity to contest the decree-holder's prayer for transfer. The learned Subordinate Judge ought to have, accordingly considered the said objection on its merits.
10. We have already stated that in the tabular statement on the basis 'of which the order for transfer was made, it was not stated that any of the judgment-debtors resided within the jurisdiction of the Alipur Court. The application for transfer accordingly did not purport to be on the ground mentioned in Clause (a), Section 39, Civil P.C. The application for transfer was apparently made under Clause (b) of the said Section. But the whole of Section 39 gives a discretion to the Court in the matter of transfer. That discretion must be judicially exercised. If the application for transfer is under Clause (b), the Court must be satisfied that the judgment-debtor has not property within its jurisdiction sufficient to satisfy the decree. If the Court comes to the conclusion that the judgment-debtor has property within its jurisdiction sufficient to satisfy the decree, ordinarily it ought not to transfer the decree for execution by another Court. Even if the Court comes to the conclusion that the properties within its jurisdiction are sufficient to satisfy the decree, in special circumstances notwithstanding that fact, the Court may transfer the decree for execution to another jurisdiction for, Clause (d) of Section 39 is sufficiently comprehensive; but in the last mentioned case the Court should record its reasons for making the order of transfer. In any view of the matter, Section 39 indicates that the Court which passed the decree must apply its mind to the matter when an application has been made by the decree, holder for transfer of the decree to another jurisdiction for execution, and exercise its discretion vested in it by that Section in a judicial manner. From the orders of the Court below as recorded on 10th March 1938 and 12th March 1938, it appears that the Court in this case did not apply its mind to the matter at all and did not consider at all that it had a discretion to exercise. We accordingly set aside that part of the order dated 5th July 1938, which deals with the question as to whether the order dated 12th March 1938 ought to be re-called or not.
11. The order which we propose to pass is this, that the case should go back to the Subordinate Judge at Nadia to allow the parties to lead evidence bearing on the question as to whether the judgment-debtors against whom the decree-holder wants to proceed have or have not properties within the jurisdiction of the Nadia Court sufficient to satisfy the decree. If the Court finds that there are properties within the jurisdiction of the Nadia Court sufficient to satisfy the decree, it will consider whether a case has been made out for transfer in view of the provisions of Clause (d) of Section 39, Civil P.C. If it comes to the conclusion that the properties within its jurisdiction, are sufficient to satisfy the decree, or no other reason exists for granting the application for transfer, it will recall its order dated 12th March 1938, and in that event recall the decree from the Court of the Subordinate Judge at Alipur where execution proceedings are pending. Pending this enquiry by the Court of the Subordinate Judge, Nadia, the attachment effected by the Alipur Court will remain in force. But further proceedings in the Alipur Court are stayed pending the final determination of the question for which we remand the matter to the lower Court. The appeal is allowed, the order of the lower Court is set aside and the case remanded to that Court. Costs of this appeal will abide the result, hearing-fees three gold mohurs.