LALA SARADAKRIPA Vs. COMILLA UNION BANK LTD

JUDGEMENT

(1.) This Rule has been directed against an order of the Subordinate Judge, Second Court, Ghittagong, rejecting an application of the petitioners made under Order XXI, Rule 29, Civil Procedure Code, on the ground that he had no jurisdiction to stay the execution of the decree under order XXI, Rule 29.

(2.) In this case a money decree was passed against the plaintiffs petitioners before us and that decree was transferred from the Comilla Court to the Court at Chittagong. In that Court, the plaintiffs filed a suit for setting aside the decree and for recording an adjustment and, therefore, applied to the Court for stay of execution of the decree, which had been transferred from the Comilla Court. The learned Subordinate Judge held that, under the terms of Order XXI, Rule 29, he was not entitled to stay the execution, inasmuch as his Court was not the Court, which passed the decree. Under Rule 29, Order XXI: Where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.

(3.) The learned Subordinate Judge relied upon a recent decision of the Allahabad High Court in the case of Inyat Beg V/s. Umrao Bej , The learned Advocate General, on behalf of the petitioners, has referred us to RS. 37 and 42, Civil Procedure Code. Section 37 lays down that the expression court which passed a decree or words to that effect, shall be deemed to include, 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 pasted was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. It is urged that inasmuch as the Criminal Court had transferred the decree for execution to the Court, at Chittagong, it ceased to have jurisdiction to execute the decree. In support of this view the case of Maharaja of Bobbili V/s. Narasaraju Peda Simhutu , 36 Ind.Cas. 682 A.I.R. 1916 P.C. 16 : 31 M.L.J. 300 : 18 Bom. L.R. 909 : 14 A.L.J. 1129 : 20 M.L.T. 472 : 24 C.L.J. 478 : 4 L.W. 508 (1916) 2 M.W.N. 514 : 24 C.W.N. 162 : 1 P.L.W. 26 : 43 I.A. 238 (P.C.), has been cited, where it was held that, when a decree of a District Court was sent to the Court of a Munsif for execution, the proper Court, in which to apply for execution or to take some step- in-aid of execution of the decree is the Court of the Munsif, the Original Court having ceased to have jurisdiction. In this view of the case the holder of a decree of such Court under Section 37, Civil Procedure Code, will include the Court, to which the decree was transferred. Under Section 42, Civil Procedure Code, also: 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