S.S. Dhavan, J. - (1.) THIS is a Second Appeal against the order of the learned District -Judge, Ghazipur remanding the decree holders application for execution to the execution court for a decision on merits. The facts of the case are as follows: The decree holder is a firm called Balram Das Fakir Chand, which obtained a money decree for Rs. 3,048/ - against the judgment debtors Parma Nand Rai and others. The decree was passed by the Munsif, Rasra in the district of Ballia. The decree holder then applied for the transfer of the decree to the Munsif, Mohammadabad, in Ghazipur district for execution and the decree was transferred to that court. The certificate of transfer is dated 29 -8 -1947. After an interval of nearly three years, the Munsif of Mohammadabad passed an order directing the return of the execution application to the decree -holder for presentation to the proper court. The application was returned to the decree -holder on 2 -8 1950 and he presented it to the Civil Judge, Ghazipur on the next day. It is not clear why and how a decree, which had been transferred to his Court for execution could be returned "for presentation to the proper court." It is possible that during the pendency of the application in his court, the jurisdiction of the Munsif of Mohammadabad was restricted and he could no longer entertain it. It is not clear from the record whether any orders were passed for the transfer of cases which were pending in his Court and which he could not hear for lack of jurisdiction, to any other court.
(2.) THE learned Civil Judge held, on an objection by the judgment debtor, that the could not execute the decree unless it had been transferred to his Court by the court which had passed the decree. He allowed the objection and dismissed the decree holder's application for execution on the ground that the decree had not been sent to his Court by the Munsif of Rasra, but had been presented by the decree holder direct. On appeal the learned District Judge passed an order commenting severely on the handling of the case by the Civil Judge. I do not think that the adverse comments are justified. The learned Civil Judge applied his mind conscientiously to the controversy raised by the parties and did his best to ascertain the history of the case. It was not his fault that during the intervening years one court had been abolished altogether and another had its jurisdiction altered. This was the probable cause of the confusion which was shared alike by the Court and the parties.
(3.) THE sole question in this appeal is whether after the execution application had been returned by the Munsif of Mohammadabad to the Munsif, Rasra (or rather its successor court), the latter court, by passing an order directing the decree holder to present the application to the proper court, will be deemed to have "sent" the decree for execution to the court of the Civil Judge, Ghazipur in accordance with Section 38 and Order 21, Rule 6 Code of Criminal Procedure. The learned Civil Judge took the view that the decree was not properly sent "as the decree holder had taken the application himself" whereas it should have been sent by the court direct to him. In my opinion the view taken by him of the directions in these provisions is much too narrow and technical. They require that the court which passed the decree should send it to the court which is required to execute it. No particular manner of sending it is prescribed. There is nothing in the section or the rule to prevent the court passing the decree handing over the execution application to the decree holder himself with a direction to take it to the court required to execute it. When this is done, the requirements of the Code are complied with. The real purpose of the provisions is that the executing court should have the authority of the court which passed the decree to enable it to execute it. The vital Parr of the provisions is the existence of this authority and not the manner of its transmission to the other court. It cannot be disputed, in the case before me, that the court which passed the decree did authorize the court within whose jurisdiction the property lay to execute the decree. I am therefore, inclined to hold that there has been sufficient compliance with the provisions of Section 38 and Order 21 Rule 6.;