JUDGEMENT
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(1.)THIS second appeal arises out of execution proceedings. The decree-holder is the appellant and the judgment-debtor is the respondent. A crow-objection also has been filed by the respondent-judgment- debtor.
(2.)THE relevant facts, in brief, are as follows: A suit for declaration, demolition of construction and in the alternative for possession was filed by the plaintiff against the defendant. It was filed in the court of District Judge, Bhadohi in 1948 and the same was decided on May 13, 1949. An execution application was filed in the court of Civil and Sessions Judge, Gyanpur in August, 1950. This execution case was subsequently transferred to the court of Munsif, Gyanpur and in the execution proceedings before the Munsif, the judgment-debtor-respondent filed objections under Section 47, Civil Procedure Code. The objections were dismissed by the execution court but on appeal the lower appellate court allowed the same. The lower appellate court, while allowing the appeal, directed that "the delivery of possession made in execution of the decree was not properly made and it is ordered that the appellant is entitled to get back possession of the property. The parties shall bear their own costs of this appeal". The decree-holder felt aggrieved and has come up in the instant second appeal and in support thereof, Sri Kameshwar Nath Tripathi, the learned counsel for the appellant, has made his submission. In opposition, Sri G. P. Bhargava, the learned counsel for the judgment-debtor-respondent, has made his submissions. The cross-objection is to the effect that the lower appellate court erred in holding that the execution court had the jurisdiction to execute the decree and it was prayed that the execution application should have been dismissed on the ground of absence of jurisdiction.
The points which arose on the basis of the respective contentions raised on behalf of the rival parties are as follows:
1. Was the execution application liable to be rejected on the ground that it was initially moved in the court of the Civil and Sessions Judge, Gyanpur and not in the court of Munsif, Gyanpur ? 2. Whether the execution court erred in directing the execution of the decree on the ground that there was no decree for possession ?
(3.)ON the first point, learned counsel for the judgment-debtor respondent contended that the Civil and Sessions Judge had no jurisdiction to entertain the execution application and the same was bound to be moved before the Munsif. In other words, it is contended that the Civil and Sessions Judge, was neither the court which passed the decree nor the transferee court and a reference has been made to Sections 37, 38 and 39, Civil Procedure Code in this connection. These Sections may be usefully reproduced below:-
"37. Definition of Court which passed a decree.- The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include.- (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance, and (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try the suit. 38. Court by which decree may be executed.- A decree may be executed either by the Court which passed it, or by the court to which it is sent for execution. 39. Transfer of decree.- (1) The Court which passed a decree may, on the application of the decree- holder, send it for execution to another Court,- (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or (d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court. (2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction."