- (1.) THIS is an appeal by the decree-holder, Ganeshilal, against the order of the District Judge, Pali, dated the 16th Feb. , 1955.
(2.) THE facts giving rise to it are that the appellant obtained a money decree against one Faujmal Oswal resident of Bali and proprietor of a Joint Hindu family firm "faujmal Gulabchand" on 9th August, 1944, from the court of Sub-Judge, Beawar. He took out execution of that decree and then the learned Sub-Judge Beawar, transferred the same for execution to Civil Judge, Pali. THE Civil Judge, Pali accordingly started execution proceedings and service was effected on Faujmal s/o Gulabchand Porwal. He appeared in the transferee court and raised an objection that the decree was not passed against him, because he was not Faujmal Oswal against whom the decree was passed by the trial court. THE learned Civil Judge, Pali made an inquiry and came to the conclusion that the decree, was, in fact, passed against respondent Faujmal s/o Gulabchand Porwal and that he was mis-described in the original decree as Faujmal Oswal. Aggrieved by this Order dated 23. 9. 54, the respondent filed an appeal in the court of the learned District Judge, Pali. It was held by him that the court of the Civil Judge, Pali, being a transferee court, had no jurisdiction to enquire into the question whether the decree was passed against Faujmal Porwal. He, therefore, allowed the appeal and set aside the order of the Civil Judge, Pali dated the 23rd September, 54. It is against this order that the present appeal has been filed. Learned counsel for the appellant has urged that under sec. 42 of the Civil Procedure Code the transferee court had the same powers as the transferor court and therefore it is urged that the learned Distt. Judge was wrong in holding that the learned Civil Judge. Pali, had no jurisdiction to enquire into the matter whether the decree was passed against Faujmal Porwal. Learned counsel for the respondent has contended on the other hand that the transferee court certainly had the same powers as the transferor court relating to the execution of the decree, but the point which was raised before the transferee court did not relate to execution but to amendment of the decree. It is urged that the point before that court was whether the decree was passed against Faujmal Porwal or against Faujmal Oswal. It has been argued by learned counsel for the respondent that Porwals and Oswals are different communities and therefore Faujmal Porwal could not be the same person as Faujmal Oswal. It has been further argued that the parentage of the judgment debtor was also not given in the decree and therefore, it was not a mere matter of misdescription. It is further contended that such a mistake could be corrected only by the court which passed the decree, on an application under sec. 151 or 152 C. P. C. , that the transferee court had no such jurisdiction and the learned District Judge was quite correct in setting aside its order. I have given due consideration to the arguments raised by learned counsel on either side. It is true that according to sec 42 of the C. P. C. the transferee court has the same powers in executing the decree as if it has been passed by itself. But as pointed out by learned counsel for the respondent, the mistake in this case, if any, is about the identity of the judgment-debtor and such a mistake could be rectified, in my opinion, only by the court which passed the decree. The powers which have been given to the transferee court under sec. 42 C. P. C. are only for executing the decree and not for the correction of the decree if there is any mistake therein. Learned counsel for the appellant has referred to Bharmal Tilokchand vs. Bai Vishnabai (1 ). In that case a suit for rent was brought against a proper person, but he was mis-described on account of the fact that he had given out his son's name for himself instead of giving his own name. When this mistake was found out in execution proceedings it was rectified by the executing court. It may be pointed out that in the above case the executing court was the very same court which had passed the decree and it was under those circumstances that it was held that sec. 151 of the Code conferred sufficient powers on the court to enable it to do what it actually did. It is interesting to point out that a learned Judge of the same High Court in Krishnaya Parbhaya Chaintalwar vs. Meghraj Paparam Teli (2) where the mistake related to misdescription of the judgment-debtor observed that it was only the court which passed the decree that could correct the mistake in exercise of its inherent powers under sec. 151 C. P. C. It may be further pointed out that in Kudratulla Sarkar vs. Upendra Kumar Chowdhary (3) it was observed that an executing court has no power so set aside the decree though passed against a wrong party. In view of the later two authorities cited above with which I respectfully agree, the learned District Judge, Pali has committed no mistake in setting aside the order of the transferee court. The proper course for the decree holder appellant was to file an application before the court which passed the decree and get it amended if it was really directed against Faujmal S/o Gulabchand Porwal against whom it is sought to be executed. I see no good ground to interfere in this appeal and it is, therefore, dismissed. In view of the circumstances of the case, the parties are left to bear their own costs. .;