Bapna, J - (1.) THE appellant Shyamlal obtained a decree against Nawab, Mohd. Rustamali Khan Jagirdar Basai, Sub-Division Dholpur on 29th April, 1939 for the recovery of Rs. 3600/- from the court of Ijlas Khas of Dholpur. THE copy of the decree shows that the decree was obtained on appeal by the plaintiff against the judgment and decree of the Judicial Secretary of Dholpur dated 25th May, 1932. THE decree carried interest at 6% P. A. which was put in execution from time to time and the last application was filed on 27th April, 1951. THE amount of the decree plus interest sought to be recovered was over Rs. 6000/-Mohd. Rustamali Khan had died in the meanwhile and the execution petition was filed against the various persons and the parties alleged to be in possession of the estate of the deceased. THE learned Civil Judge of Dholpur by order of 11th May, 1953 held the execution application to be barred by time. THE decree holder filed the present appeal on 11th August, 1953. One or the other respondent was not served for a long time and when ultimately the case came for hearing on 21st November, 1957, a preliminary objection was raised by the respondent that the appeal did not lay to this court but should have been filed in the court of the District Judge of Bharatpur.
(2.) COUNSEL for the appellant contended that the amount sought to be recovered under the application was over Rs. 6000/- and for that reason the appeal lay to the High Court and had been properly presented. It was also urged that according to the law in force, on the date of the institution of the suit, the appeal then lay to the Ijlas Khas and the High Court was now the Court in place of Ijlas Khas. It may be mentioned that the Rajasthan Civil Courts Ordinance (No. VII of 1950) came into force with effect from 21st January, 1950 and the jurisdiction of courts is laid down in Chapter III of that Ordinance. It is not disputed that the executing court in 1951 was the court of the Civil Judge of Dholpur. Sec. 21 which relates to appeals is as follows: - "save as aforesaid an appeal from a decree or order of Civil Judge shall lie : - (a) to the District Judge where the value of the original suit in which, or in any proceeding arising out of which the decree or order was made did not exceed Rs. 5000/-, and (b) to the High Court in any other case. The remaining sub-sections are not relevant. The pecuniary limit of Rs. 5,000/- was subsequently raised by Act No. VI of 1955 to Rs. 10,000/- but the present case relates to a period when the pecuniary limit was, as stated above, Rs. 5,000/-/ -. It is urged by learned counsel for the appellant that clause (a) was applicable only in cases where the decree or order of the Civil Judge is passed in an original suit of the value not exceeding Rs. 5000/- or where the value of proceeding in which the order was passed did not exceed Rs. 5000// -. It was urged that as the value of the execution proceeding in the present case was over Rs. 6000/ /- it was not covered by clause (a) of the section and the appeal lay to the High Court. The contention is without any force. The word 'proceeding' in this section relates to the original proceeding and not to the execution proceedings. This is clear by reference to sec. 19 which relates to the jurisdiction of the court of the Civil Judge. It says: - Subject as aforesaid - (1) the court of Civil Judge shall have jurisdiction to hear and determine any suit or original proceeding of which the value does not exceed Rs. 10,000/ -. Sec. 21 provides for appeals. The first clause refers to the appeal in suits and the second clause relates to appeals in original proceeding. It was not necessary to make provision for execution applications for secs. 37 and 38 of the Civil Procedure Code make provision in respect of the courts which may execute the decrees. Sec. 38 says that the decree may be executed either by the court which passed it or by the court to which it is sent for execution. Sec. 37 defines the court which passed a decree as including the successor court. Where the court of first instance which passed the decree ceases to exist or to have Jurisdiction to execute the decree, the court which, if the suit wherein the decree was passed were instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suits, has the jurisdiction to execute the decree. In respect of appeals, the order in execution proceedings is either an order or a decree. If it be considered to be an order, sec. 106, C. P. C. lays down that where an appeal from any order is allowed, it shall lie to the court to which an appeal would lie from the decree in the suit in which such order was made or where such order is made by a court (not being a High Court) in exercise of appellate jurisdiction, then to the High Court. If it is a decree, a provision is clearly made in sec. 21 that it shall lie to the court of the District Judge in case the value of the original suit was less than Rs. 5000/-and in any other case to the High Court. It is the value of the original suit which determines the forum of appeal against the decree. In view of the above, the appeal under the Civil Courts Ordinance, lay to the District Judge, since the value of the original suit was Rs. 3600/- i. e. , less than Rs 5000/ -. As to the other contention the relevant law in force in Dholpur has not been cited. As a result the appeal filed by the appellant to this Court was not competent and it is ordered that the memorandum of appeal be returned to be presented to the proper court. It will be for that court to decide whether the delay in the making of the appeal should be condoned. No order as to costs. .;