S MARAHMAT HUSAIN Vs. OUDH COMMERCIAL BANK LTD

JUDGEMENT

(1.) This is an appeal by a judgment-debtor against an order in execution passed by the learned Subordinate Judge of Azamgarh. This order was passed in course of execution of a decree which had been passed by the learned Subordinate Judge of Fyzabad in Suit No. 5 of 1913. (The Oudh Commercial Bank against Mt. Saleha Bibi and her husband Syed Riasat Husain judgment-debtors.) The procedure of the Court of Azamgarh has given rise to several objections which have been dismissed by that Court and which have been the subject of various grounds of appeal. The first objection which is taken is that on 24 November 1921 a certificate which is not before us as it is not on the record is said to have been issued by the Court at Azamgarh to the Court at Fyzabad. This certificate was apparently in printed Form 5 of App. E or possibly Form 4. Both are forms under Order 21, Rule 6. According to the lower Court on this certificate the words were written in regard to this execution proceeding: Send to the Collector for execution." The argument of the learned Counsel for the appellant judgment-debtor is that this is a certificate of the result of the execution proceedings under Section 41, Civil P.C., and that after sending that certificate the Azamgarh Court had no further jurisdiction in these execution proceedings. Now Section 41 states as follows: The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same, the circumstances attending such failure.

(2.) This section clearly contemplates either that execution should take place or that the Court to which the decree has been transferred should certify that it has failed to execute the decree. But the words "send to the Collector for execution" do not come under any of. the words in Section 41. It is neither certified that execution has taken place nor that there has been a failure to execute. Accordingly we consider that the use of this form did not amount to the issue of a certificate under Section 41 and therefore that the jurisdiction of the Court in Azamgarh was not at all affected by that matter.

(3.) The next point which was argued before us was in regard to an application made by the decree-holder on 29 November 1921 that execution should continue and that the names of three persons Khairunnissa, Khurshed Husain and Banne Bibi should be added as judgment-debtors. On this notice was issued and a "rubkar" was sent to the Collector that these names be added and the application was granted. Now the reason for adding these names was that both the original judgment-debtors Mt. Saleha Bibi and Syed Riasat Husain had died. There was an application made in the Azamgarh Court on 1 December 1921 for execution of decree against ten persons including the present appellant Marahmat Husain in place of the deceased judgment-debtors, and that application was granted and at that time Marahmat Husain made no objection that the Azamgarh Court had no jurisdiction. The present objection indeed is only taken against the order of 29th November 1924 that three other persons should be added as legal representatives The chief point on which the argument is based is that in various rulings it has been held that under Section 50, Sub-section 1, only the Court which passed a decree has power to order that the decree should be executed against the legal representatives of a deceased judgment-debtor. That section does no doubt clearly direct that the application may be made to that Court. The question broadly which has been argued before us is whether that section gives an exclusive jurisdiction to the Court which passed a decree for the purposes of substituting the names of legal representatives for a deceased judgment-debtor, or whether an application may also be made to and orders passed by that Court to which a decree has been transferred for execution. Section 42, Civil P. C, provides that the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself.