Mitter, J. - (1.) This is an appeal from an order of the learned Subordinate Judge, 2nd Court, Alipore, dated May 13, 1952, in Miscellaneous Execution Case No. 29 of 1951. By the said order the learned Subordinate Judge overruled the appellant's objection to the maintainability of the execution case.
(2.) On or about April 4, 1939, the respondent instituted against the appellant a suit on the Original Side of this Court for the recovery of Rs. 6,035. On July 12, 1939, while the said suit was pending, the Court of Wards assumed charge of the appellant's estate which was in the district of Noakhali. Two days later, i.e., on July 14. 1939, the said suit was decreed ex parte for Rs. 6,115 with 6 per cent interest on judgment. On July 24, 1939, the Court of Wards issued a notice under section 10A of the Court of Wards Act, 1879, calling upon all creditors having claims against the; ward or his immovable property to submit their claims within six months from the date of the publication of the said notice. On August 1, 1939, the; said notice was published in the Calcutta Gazette and in certain newspapers. It is common case that the respondent did not prefer any claim in respect of the said decree. On March 30, 1949, the appellant's estate was released by the Court of Wards. Thereafter, the said High Court decree was transferred to the 2nd Court of the Subordinate Judge at Alipore. On July 7, 1951, the respondent started execution proceedings in the said Court to recover the decretal amount together with interest and costs, aggregating Rs. 10,559-11. The appellant by an objection under section 47 of the Code of Civil Procedure contended, inter alia, that the execution proceedings were not maintainable, inasmuch as the decree-holder had not preferred any claim pursuant to the notice under section 10A of the Court of Wards Act.
(3.) Although, according to the learned Subordinate Judge, no other point was pressed, he proceeded to decide whether section 10C was a bar to the said execution proceedings and held, on the authority of the decision in Anath Nath Bose, Rai v. Srish Chandra Nandy, Maharaja, 45 C.W.N. 617) that the provisions of section IOC did not apply to a decree of the High Court. He held further, purporting to rely upon the said decision, that the judgment-creditor was entitled to claim interest as decreed by the High Court. Before us, both parties are agreed that section IOC has no application to the case even though by the amendment in 1941 of section 3 of the Court of Wards Act. 1879, "Civil Court" included the High Court in Calcutta in the exercise of its Ordinary and Extraordinary Original Civil Jurisdiction or its Civil Appellate or Revisional Jurisdiction. (See Bengal Act, IX of 1941.) It is common case that at the date of the execution concerned no property belonging to the appellant was, or has since been, in charge of the Court of Wards. In terms, therefore, the provisions of section IOC have no application to the case. Section IOC provides that where any property is in charge of the Court of Wards, no Civil Court shall execute any decree or order against the person or property of the ward, etc.;