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Appeal from Appellate Order No. 6 of 1961, decided on 20th July 1962.

debtor having ceased to reside or possess property within jurisdiction of Court concerned Decree for execution can be sent to Court having jurisdiction over person or property of judgment‑debtor‑Application for execution within 3 years from date of order of dismissal for default of first execution not barred‑Limitation Act (IX of 1908), Art. 182 (5) ‑ Civil Procedure Code (v of 1908), S. 38, O. XXI, r. 22.

M. H. Khandker with M. A. Mannan for Appellant.

P. K. De for Respondent.

The decree‑holder instituted Money Suit No. 49 of 1950 in the First Court of Munsif of Dacca for a sum of Rs. 1,923‑8‑0 which was decreed on 19th of November 1951 providing that the said sum would be payable within three years from the date of the decree, namely by 18th of November 1953.

2. Thereafter on 19th of August 1956, the decree‑holder filed application in the First Court of Munsif, Dacca for execution of the decree and the said case was registered as Money Execution Case No. 47 of 1956 on 20th of August 1956. As the application for execution was filed beyond one year a notice under Order XXI, rule 22 of the Code of Civil Procedure was issued on the 1st of October 1556, on the judgment‑debtor. From Order No. 41, dated 17th of November 1956, it appears that notice under Order XXI, rule 22 of the Code was duly served and thereafter another Miscellaneous Case was started being Miscellaneous Case No. 200 of 1956 under the provisions of the Code and the same was dismissed for default on 8th of February 1958. The decree‑holder, thereafter was asked to take steps by the 25th of February 1958, but as the decree‑holder neither filed the requisites nor took any step the execution case was dismissed for default on that date. The decree‑holder again filed another application for execution of the decree in the first Court of Munsif, Dacca, on 18th of February 1960 and Money Execution Case No. 8 of 1960 was started. On 4th of February 1960, the First Court of Munsif, Dacca, sent a certificate of satisfaction to the 4th Court of Munsif, Narayanganj for execution of the decree. After the transfer the decree‑holder filed an application for execution of the decree before the transferring Court and it was numbered as Money Execution Case No. 10 of 1960. Notice under Order XXI, rule 22 of the Code of Civil Procedure, was issued and served on the judgment‑debtor. The judgment‑debtor filed objection under section 47 of the Code of Civil Procedure contending inter alia that the Money Execution Case No. 47 of 1956 of the First Court of Munsif, Dacca, was without jurisdic tion as neither the judgment‑debtor nor any property of the judgment‑debtor was within the jurisdiction of that Court; that the application was barred by limitation and that non‑issue of notice under Order XXI, rule 22 of the Code made the certificate of non‑satisfaction of the decree illegal.

3. The executing Court held that the objections were not substantiated and in this view of the matter dismissed the application under section 47 of the Code of Civil Procedure. The judgment‑debtor preferred an appeal. The lower Appellate Court held that the application was barred by limitation inasmuch as the first Court of Munsif, Dacca had no jurisdiction to entertain any application for execution and that as the transferring Court did not issue any notice under Order XXI, rule 22 of the Code of Civil Procedure to be served on the judgment‑debtor before it was sent to the executing Court the certificate of non‑satisfaction was illegal.

4. The aforesaid two questions, namely, whether the appli cation is barred by limitation and whether non‑issue of notice under Order XXI, rule 22 by the First Court of Munsif, Dacca, before it transferred the execution petition to the 4th Court of Munsif, Narayanganj, made the certificate illegal and executions case without jurisdiction, are for consideration before us. The lower Appellate Court in support of its view reified on the case of Jatindra Kumar Das v. Mohendra Chandra Banikya and another (37 C W N 1167). From the aforesaid case it appears that the Munsif's Court at Dacca transferred a decree passed by it to another Court at Tangail for execution. An execution proceeding was started but it was dismissed on the 29th of August 1927. On 25th of January 1929, the decree‑holder filed an application for execution of the decree in the Court at Dacca. That application remained pending in that Court. On the 2nd March 1929, the decree together with the certificate of non‑satisfaction was returned by the Tangail Court to the Dacca Court. Thereafter the appli cation filed on 25th of January 1929, was registered and was eventually dismissed. On the 1st of June 1931, another application was filed and in those circumstances it was held that the appli cation filed on 1st of June 1931, was barred by limitation as the application filed in the Court at Dacca on the 25th of January 1929, was not in the proper Court and as such it was not an application in accordance with law within the meaning of Article 182(5) of the Limitation Act. It was further held that the Court transferring a decree for execution in another Court retains jurisdiction only for certain limited purposes as mentioned in Order XXI, rule 16 or rule 22 of the Civil Procedure Code. It appears that a different view had been taken in the case of Rajani Kanta Pattadars v. Syed Kazi Golam Mohiuddin (39 C W N 129).

5. Be that as it may, the facts as disclosed above do go to show that the case has no application to the facts and the circum stances of the present case. In the present case no case has been made out that the First Court of Munsif, Dacca, transferred the decree for execution to another Court but the application was filed before the First Court of Munsif, Dacca, for execution, which was dismissed and subsequently another application was filed which was transferred to the 4th Court of Munsif, Narayan ganj, for execution where an objection under section 47 of the Code was filed and the present dispute arose.

6. Then comes the question whether the First Court of Munsif, Dacca, which passed the decree in Money Suit No. 49 of 1950 had jurisdiction to entertain an application for execution of the decree passed by it on the 19th of November 1951, namely, whether the Money Execution Case No. 47 of 1956 was with or without jurisdiction. Section 38 of the Code of Civil Procedure provides:

"A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

7. Section 37 of the Code provides:

"The expression Court which passed a decree' or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include: (a) where the decree to be executed has been passed in exercise of appellate jurisdiction, the Court of first instance, and (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which is the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit."

8. It is not the case of the objector that the Court of first instance has ceased to exist. Moreover, from the record it appears that the Court which passed the decree is in existence, namely, the First Court of Munsif, Dacca. Now the question is whether the first Court of Munsif, Dacca which passed the decree ceased to have jurisdiction to execute the decree. It is not disputed that the money decree that was passed by the first Court of Munsif, Dacca was within jurisdiction. As such the decree that was passed by the first Court of Munsif, Dacca was valid and legal, and executable by the Dacca Court in view of provisions of section 38 of the Code. As to the ground of attack the objection of the judgment‑debtor which has been accepted by the lower Appellate Court is as neither any property belonging to the judg ment‑debtor nor the judgment‑debtor is within the jurisdiction of the First Court of Munsif, Dacca, which passed the decree, it had no jurisdiction to entertain the application filed before it on 9th of August 1956. If the objector is successful in proving that he application that was filed on the 9th of August 1956 was not presented to a proper Court as enjoined by the Explanation 2, Article 182 of the Limitation Act, the objection may stand. The Explanation 2 runs as follows:

"Proper Court means the Court whose duty it is to execute the decree or order".

Section 38 of the Code provides:

"A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."

9. In view of the aforesaid provisions apparently the First Court of Munsif, Dacca, was the proper Court at the relevant time and had jurisdiction to entertain the application for execution of the decree on the 9th of August 1956. In my opinion, only because the judgment‑debtor is now residing outside the jurisdiction of that Court and there is no property movable or immovable belonging to the judgment‑debtor within the jurisdiction of the First Court of Munsif, Dacca that will not take away the juris diction of the First Court of Dacca which passed the money decree to entertain an application for execution and to transfer the same to another Court. As to limitation it appears that on the 9th of August 1956, when the application for execution of the decree was filed within time in the proper Court i.e., the First Court of Munsif, Dacca, the executing Court issued notice under Order XXI, rule 22 of the Code of Civil Procedure and attached some property. It further appears that when the Miscellaneous Case No. 200 of 1956 was dismissed for default, the decree‑holder was asked to take steps. But as the decree‑holder did not take any step it was dismissed for default, which is a final order within the meaning of clause (5) of Article 182 of the Limitation Act, and as the second application was filed on 18th of February 1960, which was within three years from the final order passed in the first execution case dismissing the same for default on 25th of February 1958, the second application cannot be held to be barred by limitation in view of the provision of clause (5) of Article 182 of the Limitation Act.

10. The second reason for holding that the second appli cation was not maintainable inasmuch as the transferring Court did not issue a notice under Order XXI, rule 22 of the Code before the decree was sent to the executing Court, I do not find any substance in this view because the provisions of Order XXI, rule 22 is intended for issuing a notice when an application for execution of a decree is filed beyond one year for the purpose of inviting objection against the executing from the judgment‑debtor. The First Court of Munsif was not executing the decree but sent the decree to be executed by the Fourth Court of Munsif, Narayanganj with a certificate.

11. The transferring Court issued notice under Order XXI, rule 22, C. P. C as enjoined by Order XXI, rule 6 of the Code. Hence, I told that the First Court of Munsif, Dacca, had juris diction to entertain an application for executing of the decree filed on 9th of August 1956, and the order that was passed on the 25th of February 1958, was the final order in that case, that the First Court of Munsif, Dacca had jurisdiction to entertain the second application rightly transferred the same to the 4th Court of Munsif, Narayanganj with a certificate of non‑satisfaction for execution, and that the certificate was not invalid only because notice under Order XXI, rule 22 of the Code was not issued and that the application for execution is not barred by limitation.

12. The appeal is accordingly allowed and the judgment and order of the lower Appellate Court are set aside and those of the trial Court are restored. Let the execution case proceed in accordance with law. I make no order as to costs.

S. B./A. H.

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