JUDGMENT
Lalit Mohan Sharma, J.
1. This appeal by the judgment-debtors raises a serious question as to the power of the Subordinate Judge, 1st Court, Patna, to execute the decree obtained by the respondent in the Court of the District Judge, Bharatpur.
2. The plaintiff decree-holder obtained a money decree for Rs. 17,313/- on 30-11-1970 from the District Judge, Bharatpur, and made a prayer for transfer of the same for execution to the District Judge of Patna which was allowed. He, however, did not file his execution case before the District Judge, Patna, rather he filed his execution petition before the Court of Subordinate judge, 1st Court, Patna, on the 12th June, 1971. In Column No. 5 of his execution petition, the decree-holder stated that the decree had been transferred from the Court of the District Judge, Bharatpur to the Court of the District Judge. Patna, and did not state that the same had been further transferred by the District Judge to the Subordinate Judge. It was further stated in the execution petition that the decree along with costs and interest had not been paid up by the judgment-debtors and, therefore, the decree-holder had got the same transferred to the Court of the District Judge, Patna, and he was praying that the decree should be executed. This statement also clearly indicated that after the decree was duly transferred to the Court of the District Judge, Patna, there was no order passed by the District,
Judge, Patna, transferring the same to the Subordinate Judge.
3. The judgment-debtors filed an application under Section 47 of the Code of Civil Procedure raising several points against the maintainability of the execution case. It was not specifically stated therein that the execution case was not maintainable in absence of an order of transfer by the District Judge to the Subordinate Judge, but in paragraph 6 it was stated that the execution case was not maintainable on grounds which would be urged thereafter, presumably meaning thereby the grounds which might be raised at the time of hearing of the application under Section 47 of the Code of Civil Procedure. At the time of hearing of the application by the Court below, this was the main point urged on behalf of the judgment-debtors and considered by the Court below at some length. No objection appears to have been raised to the judgment debtors’ taking up this point at the time of hearing, although specifically it was not mentioned in the application under Section 47 of the Code of Civil Procedure. The Court below held that in view of the decision given in Maharaj Kishore Khanna v. Raja Ram Singh, AIR 1954 Pat 164 the execution proceeding could not be said to be illegal. Overruling other objections, the Court dismissed the judgment-debtors’ application under Section 47 of the Code of Civil Procedure, The judgment-debtors have come by way of present appeal to this Court from the said decision.
4. Mr. Chunni Lal, learned Counsel for the appellants, has contended that the decision in AIR 1954 Pat 164 does not cover the present case and the decision in Syed Mohammad Mehdi v. Syed Zainuddin Hassan Mirza. 1957 BLJR 666 = (AIR 1957 Pat 654) fully applies to the facts and circumstances of the case and it should be held that the execution proceeding is without jurisdiction. In the case of Maharaj Kishore Khanna, a decree was granted in favour of the Bank of Banaras and certain other creditors by the Special Judge of Banaras and the same was transferred directly to the Subordinate Judge of Purnea who proceeded to execute the decree. One of the points raised on behalf of the judgment debtors was that Order 21, Rule 5 of the Code of Civil Procedure provides that where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed. Therefore, the decree in question should have been transferred for execution to the Court of the District Judge. Purnea, who could have thereafter transferred it to the Subordinate Judge. Purnea and in absence of the same, the Subordinate Judge, Purnea, had no jurisdiction to proceed with the execution. Overruling the contention, it was held that the jurisdiction to transfer a decree for execution from one Court to another arises not under Order 21. Rule 5 but under Section 39. Order 21, Rules 5 and 8 merely prescribe the procedure by which the transfer is to be carried out. It was ruled that failure to observe the provisions of Order 21, Rule 5 or 8 was a mere irregularity and did not affect the jurisdiction of the Subordinate Judge of Purnea to execute the decree. The case is clearly distinguishable inasmuch as the question raised by the judgment debtors before me does not relate to any irregularity in transferring the degree to the Court of the Subordinate Judge, Patna, but the point raised is that the decree having not been transferred to the Subordinate Judge, Patna, at all the latter had no jurisdiction to execute the same. In the case of 1957 BLJR 666 = (AIR 1957 Pat 654), the facts were similar to those of the present case. The decree holder had obtained a decree in the Court of the Subordinate Judge, Purnea and filed execution cases there which were dismissed. Subsequently, the decree holder moved for transfer of the decree to the Court of the Subordinate Judge, Patna, for execution and the Subordinate Judge. Purnea, transferred the same to the District Judge, Patna, The decree holder, thereafter, filed his execution case in the Court of the Subordinate Judge, 1st Court, Patna, and an objection was raised to the jurisdiction of the Court on behalf of the judgment debtor on the ground that the decree under execution had not been transferred to the Court of the Subordinate Judge, Patna. The Division Bench hearing the case ruled that inasmuch as the decree was sent to the District Judge, Patna for execution and not to the Subordinate Judge, 1st Court, Patna, it was not possible to accept the contention on behalf of the decree holder. and overrule the judgment debtors objection. The decision in AIR 1954 Pat 164 was also considered and it was held that it was of no assistance to the plaintiff-decree holder. Other decisions were also considered and the bench was clearly of the view that the Subordinate Judge, 1st Court, Patna, had no jurisdiction to execute the decree. The case of Syed Mohammed Mehdi v. Syed Zainuddin Hassan Mirza fully covers the case before me and I hold that the Court below had no jurisdiction to entertain the execution case.
5. Although this question was not specifically mentioned in the application under Section 47 of the Code of Civil Procedure. I do not think the judgment-
debtors can be shut out to raise the question at this stage. This point was argued on their behalf in the Court below and the Court below had not only permitted them to do so but dealt with the point at some length. There was no objection raised on behalf of the decree holder to the right of the judgment-debtors to press the point in the Court below. Besides, the question goes to the root of the jurisdiction of the executing Court It was for the decree holder to have indicated in the execution petition as to how the Court below gets jurisdiction to execute the decree and the statements in the execution petition clearly indicate that the fact that the decree was not transferred by the District Judge, Patna, to the Subordinate Judge, Patna is the admitted position. The Court below also has rightly assumed that no formal order of transfer was ever passed by the District Judge, Patni. The decision reported in the case of Ram Kristo Mandal v. Dhan Kisto Mandal, AIR 1969 SC’ 204 also supports the appellants’ contention that the question which they raised in the Court below and are attempting to raise here must be entertained and decided.
6. Mr. Deoki Nandan Prasad, appearing for the decree-holder, contended that an application had been filed before the Subordinate Judge on the 14th June, 1971 for calling for the decree from the Court of the District Judge and that the District Judge must have passed an order thereon permitting the records to be sent to the Subordinate Judge either in writing or orally. On that assumption, he further submitted that it must be held that the decree has been transferred from the District Judge of Patna to the Court of the Subordinate Judge. Admittedly, there is no such application available now and according to the case of the decree holder, the same has been made to disappear. I am unable to uphold this contention. A certified copy of the Stamp Register has been shown to me by Mr, Prasad showing that stamp had been purchased for some petition to be filed on behalf of M/s. B. P. Goils against M/s. Shankar Trading Company on the 14th June, 1971, but there is no further material to connect this application which might have been filed in the present case. Even if it be assumed that an application had been filed by the decree holder, there is nothing to indicate that any kind of order or direction had been made by the District Judge, Patna. An affidavit has been sworn by Noor Hassan Mian in this Court in support of the contention raised on behalf of the decree holder that the decree had been transferred by the District Judge, Patna to the Court of the Subordinate Judge. But in Para. 6 of the said affidavit, it is stated that the decree
holder’s application and the order passed thereon by the learned District Judge, Patna, were before the Subordinate Judge, Patna, when the matter was being argued there. I do not accept this statement. From the order under appeal as also the entire records, it is manifest that when the matter was being heard before the Court below, it was the admitted position that there was no order passed by the District Judge transferring the case to the Subordinate Judge. I hold that in this case the decree was transferred by the District Judge, Bharatpur to the District Judge, Patna and it has never been transferred so far by the District Judge, Patna, to the Subordinate Judge, 1st Court, Patna and the Subordinate Judge, Patna, has no jurisdicttion to entertain the same.
7. In the result, the appeal succeeds. The order passed by the Court below is set aside and the objection of the judgment debtors to the maintainability of the execution case is sustained. However, having regard to all the facts and circumstances of the case, there will, be no order as to costs.