H.N.Seth, J. - (1.) This first appeal is directed against an order dated 4th of January, 1977 passed by the Third Additional District and Sessions Judge, Deoria, upholding the objection raised by the judgment-debtor that the execution application filed by the decree-holder before him could not be entertained by him and that the same could be entertained only by the Civil Judge, Deoria.
(2.) Briefly stated, the facts giving rise to this appeal are that on 30th November, 1970 the appellant obtained a decree for a sum of Rs. 10,000/-against the respondents, from the Court of the Second Temporary Civil and Sessions Judge, Deoria. The appeal against that decree was dismissed on 2nd of August, 1974. Before the appellants could put their decree into execution, the U. P. Higher Judicial Service (Abolition of the Cadre of the Civil and Sessions Judges) Rules, 1974 (hereinafter referred to as 1974 Rules) came into force on 8th of May, 1974. Thereafter in the year 1976 the appellants applied before the Third Additional District Judge, Deoria, for execution of the decree obtained by them from the Court of the Temporary Civil Judge, as affirmed by the appellate court. The judgment-debtor objected to the execution of the decree by the said court on the ground that the decree in question had not been passed by that court and that it had no jurisdiction to execute the same. The objection raised by the judgment-debtor prevailed and the Third Additional District Judge held that the decree in question could be executed only by the Civil Judge, Deoria. Being aggrieved, the decree-holder has come up before this Court. The only, question involved in this appeal is as to whether the decree passed by a Civil and Sessions Judge, which has been affirmed in appeal, can, after coming into force of the 1974 Rules, be executed by the Third Additional District Judge.
(3.) According to, the Code of Civil Procedure, a decree can be executed either by the court which passed it (which term includes within its ambit the court of first instance) or by a court to which it is transferred for execution in accordance with the provisions contained in the Code. Section 37 of the Code defines the expression 'Court which passed a decree thus;- "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 the 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, if 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". Learned counsel for the appellants contends that the Court of the Third Additional District Judge, which was brought into existence after coming into force of the 1974 Rules, was in substance the same court as the Court of the Second Temporary Civil and Sessions Judge which had originally passed the decree. The only result of coming into force of the 1974 Rules was that the nomenclature of the Court of the Civil and Sessions Judge was changed into 'Court of the Additional District Judge. Accordingly, the case fell under clause (a) of Section 37 of the Code and the Court of the Third Additional District Judge, being the court of first instance, was fully competent to execute the decree. The case of the objector, on the other hand, is that after coming into force of the 1974 Rules, the Court of the Civil and Sessions Judge ceased to exist and it cannot be said that the Court of Third Additional District Judge is the same court as the Court of the Civil and Sessions Judge which had passed the decree. In the circumstances, the case fell within clause (bl of Section 37 and as at present the suit in which the decree had been passed could be instituted in the court of the Civil Judge, it is that court alone which would have the jurisdiction to execute the decree.;