N.D.Ojha, J. - (1.) THE decree-holder opposite party obtained a decree from the Munsif's Court at Pratapgarh. He made an applica tion for transfer of the decree to Bareilly and also applied for a certi fied copy of the decree. A transfer certificate was issued to the oppo site party and so was issued to him a certified copy of the decree. He presented the transfer certificate along with the certified copy of the decree in the Court of the Munsif City, Bareilly. There was an office report that the transfer certificate had been filed in a cover which was not a sealed cover and that the certified copy of the decree was in a torn condition. The Munsif City, Bareilly, gave ten days' time to the decree-holder to show cause why the execution applica tion may not be dismissed in view of the aforesaid office report. The decree-holder made an application saying that he had filed the trans fer certificate and copy of the decree in the same condition as they were issued to him by the Court at Pratapgarh. The Munsif City, Bareilly, however, took the view that the cause shown was insuffi cient and dismissed the application for execution. Subsequently, the decree-holder obtained another certificate in a sealed cover as also another copy of the decree which was in a proper condition. He made an application under the Code of Civil Procedure before the Munsif City, Bareilly, to accept the transfer certificate and the certified copy of the decree and to recall the order dismissing the execution application on the ground mentioned above. The Munsif City, Bareilly, was of the view that it was a fit case in which the power under Section 151 may be exercised. Accordingly, by his or der dated January 21, 1974, he recalled the earlier order dismissing the execution application and directed execution to proceed. A revi sion was filed against that order which was dismissed by the IV Addi tional District and Sessions Judge, Bareilly, on September 16, 1974. Aggrieved, the judgment-debtor has preferred the present revision.
(2.) IT was urged by learned counsel for the applicant that when the second application was made under Section 151 of the Code of Civil Procedure the execution had already become barred by time and it was not open to the Munsif City, Bareilly, to have allowed the appli cation. In support of this contention reliance was placed upon a Division Bench decision of the Patna High Court in Anis Imam v. Daughter of Jamunabai A.I.R. 1949 Pat. 117. In that case an execution application had been dismissed. Subsequently, after the limitation to make an application in execution had expired, another execution application was filed. Even though the subsequent application was barred by time the Court entertained it as a continuation of the earlier applica tion on the ground that the earlier application had been dismissed as a result of the Court's mistake. The Patna High Court took the view that there was no authority for the proposition that the Court is entitled to regard a subsequent application for execution as an ap plication to continue the previous application when the previous ap plication had been dismissed as a result of the Court's mistake. In the instant case the decree-holder did not make a fresh application in execution. On the other hand, he made an application under Sec tion 151 of the Code of Civil Procedure for recalling the order of dismissal of the earlier application on the ground that the previous application had been dismissed for no fault of the decree-holder but on account of the mistake of the Court. Anis Imam's case is, there fore, distinguishable on facts. As already seen above and as has been found by the IV Additional District and Sessions Judge, the execution application had been dismissed on a ground for which the decree-holder was not to blame. He made an application for trans fer certificate as also applied for a copy of the decree. The Court issuing the transfer certificate did not put the transfer certificate in a sealed cover and issued the certified copy which was in a torn con dition. The decree- holder could not be blamed for this act of the Court at all. He filed the transfer certificate as also the copy of the decree in the same condition before the Bareilly Court. In fact the Bareilly Court should not have dismissed the execution application on the ground on which it was dismissed. It should have given the decree-holder an opportunity to file a proper transfer certificate and a complete copy of the decree. In these circumstances, if the appli cation made subsequently under Section 151 was allowed, it cannot be said that the executing Court committed any mistake. In Jai Berham v. Kedar Nath A.I.R. 1922 P.C. 269 it was held that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary court, or of an intermediary Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. Similarly, in Keshardeo v. Radha Kishen A.I.R. 1953 S.C. 23 it was held that if an application in execution was dismissed on account of some mistake of Court and it was subsequently restored under Section 151, the or der could not be said to be without jurisdiction. In the result, I find no merit in this revision which is accordingly dismissed.;