Mukerji, J - (1.)The decree-holders obtained a decree for rent under the Ben-Ten. Act, from the 3 Court of the Munsif at Bhanga on 6 July 1913. This Court was subsequently transferred to Gopalgunje and made the 2nd Court of the Munsif at that place. On 5 July 1925 the decree- holders applied for execution in the 2nd Court of the Munsif of Gopalgunje by attachment and sale of a piece of immovable property of the judgment-debtor which was situate within the local limits of the jurisdiction of the Alunsif, 1 Court, Bhanga, and had never been within the jurisdiction of the Munsif, 2nd Court, Bhangs There was also a prayer for execution by attachment and sale of the judgment-debtor's moveables. After certain proceedings wore taken it was found that the immovable property against which the decree-holders desired to proceed in execution lay outside the territorial limits of the Court in which the execution was going on, viz., the Gopalgunje Court and on that the Munsif of that Court on 18 February 1927 returned the execution application to the decree-holders for presentation to the proper Court. The decree-holders then refilled the execution application on 1 March 1927 in the 1st Court of the Munsif at Bhanga. The execution proceedings went on for some time in that Court but wore eventually dismissed as not maintainable by an order dated 10 December 1927. The decree-holders preferred an appeal from that order with the result that the District Judge declared that: all proceedings in the case after 18 February 1927 were taken without any sanction of law and he accordingly directed the Munsif, 2nd Court, Gopalgunje to proceed under Order 21, Rules 5 and 6, Civil P.C., after taking an application from the decree-holders under Section 39, Civil P.C.
(2.)The decree-holders took proceedings accordingly with the result that the Gopalgunje Court on 17 August 1928 sent the decree for execution to the Munsif, 1 Const, Bhanga together with a certificate of non satisfaction. On the papers being received by the latter Court, the decree-holders on 27 August 1928 filed a fresh application for execution there.
(3.)The limitation governing the execution of this decree is that provided for in Schedule 3, part 3, Art. 6, Ben. Ten, Act. The Munsif, 1 Court, Bhanga, as well as the Subordinate Judge on appeal, have held that the execution was barred inas much as the application for execution was not made to the proper Court earlier than on 27 August 1928. They held that the decree-holders were not entitled to call in their aid the first application for execution in the 2nd Court of the Munsif at Gopalgunje as that Court was not competent to execute the decree as against immovable property situate outside its territorial jurisdiction. The decree-holders have then preferred this appeal. 3. The reasons upon which the Courts below have proceeded may well be summarized more or less in their own words thus: No Court can exocute a decree in which the subject matter of the suit or of the application for execution is property situate entirely outside the local limits of its jurisdiction. Territorial, jurisdiction therefore is a condition precedent to a Court executing a decree . . , . The property over which the execution was sought to be taken all along remained within the jurisdiction of the 1 Court of the Munsif at Bhanga, and consequently the Gopalgunje Court could never have executed the decree in a way to affect that property.... In a case like this the substance and not the form of the matter must be looked to and considered from that point of view the application for execution in the Gopalgunje Court as, initially made was for the purpose of getting a transfer of the decree to the 1 Court of the Munsif at Bhanga, but it has been held in judicial decisions that an application to get a decree transferred to another for Court execution is not an application for execution.