1. This Rule has been directed against an order of the Subordinate Judge, Second Court, Ghittagong, rejecting an application of the petitioners made under Order XXI, Rule 29, Civil Procedure Code, on the ground that he had no jurisdiction to stay the execution of the decree under order XXI, Rule 29.
2. In this case a money decree was passed against the plaintiffs petitioners before us and that decree was transferred from the Comilla Court to the Court at Chittagong. In that Court, the plaintiffs filed a suit for setting aside the decree and for recording an adjustment and, therefore, applied to the Court for stay of execution of the decree, which had been transferred from the Comilla Court. The learned Subordinate Judge held that, under the terms of Order XXI, Rule 29, he was not entitled to stay the execution, inasmuch as his Court was not the Court, which passed the decree. Under Rule 29, Order XXI:
Where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.
3. The learned Subordinate Judge relied upon a recent decision of the Allahabad High Court in the case of Inyat Beg v. Umrao Bej : AIR1930All121 , The learned Advocate General, on behalf of the petitioners, has referred us to RS. 37 and 42, Civil Procedure Code. Section 37 lays down that the expression court which passed a decree or words to that effect, shall be deemed to include, where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was pasted was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. It is urged that inasmuch as the Criminal Court had transferred the decree for execution to the Court, at Chittagong, it ceased to have jurisdiction to execute the decree. In support of this view the case of Maharaja of Bobbili v. Narasaraju Peda Simhutu , 36 Ind.Cas. 682 A.I.R. 1916 P.C. 16 : 31 M.L.J. 300 : 18 Bom. L.R. 909 : 14 A.L.J. 1129 : 20 M.L.T. 472 : 24 C.L.J. 478 : 4 L.W. 508 (1916) 2 M.W.N. 514 : 24 C.W.N. 162 : 1 P.L.W. 26 : 43 I.A. 238 (P.C.), has been cited, where it was held that, when a decree of a District Court was sent to the Court of a Munsif for execution, the proper Court, in which to apply for execution or to take some step-in-aid of execution of the decree is the Court of the Munsif, the Original Court having ceased to have jurisdiction. In this view of the case the holder of a decree of such Court under Section 37, Civil Procedure Code, will include the Court, to which the decree was transferred. Under Section 42, Civil Procedure Code, also:
The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself
4. The Chittagong Court, therefore, had powers to stay the execution of the decree, which was transferred to it under Order XXI, Rule 29. J, the Allahabad case on which reliance has been placed by the learned Subordinate Judge, no reference was made tos. 37 and section, 42, civil Procedure Cede. In another decision of the Allahabad High Court in the case of KassaMal v. Gopi 10 A 389 : 1888 ,A.W.N. 51 Mahmood, J., held that the words 'such Court', in Section 243, Civil Procedure Cede, which corresponds to Order XXI, Rule 29 of the present Code, did not limit the exercise of the powers given by that section only to decrees passed by the Court in which the suit was pending. It is true that there is a ruling of this Court in the case of Mittun Bibee v. Buzloor Khan 8 W.R. 392, in which it was held that in order to make the Court in such cases competent to stay execution of a decree, it must be a decree of the Court in which the suit was pending. That case would not be good law at present; inasmuch as the decree was by the Appellate Court and it was held that the original Court could not have powers to stay execution of the decree, because 'such Court' could not held to include the Appellate Court. But, under Section 37 of the Code, Clause (1) it is laid down that the expression 'Court which passed a decree' or would to that effect, which the decree to be executed has been passed in the exercise of appellate jurisdiction, includes the Court of first instance. Moreover in that case no reference was made to Section 649 of the old Code corresponding to Section 37 of the present Code of Civil Procedure.
5. It seems clear that under the provisions of sections. 37 and 42, Civil Procedure' Code, the Court, to which the decree has been transferred, has powers to stay the execution of the decree under Order XXI, Rule 29. This Rule is, accordingly, made absolute, the older of the Court below is set aside and the case is sent back to the Court to be dealt with according to law under Order XXI, Rule 29. The petitioners are entitled to the costs of this Rule, hearing fee one gold mohur.