JUDGMENT
Edward Chamier, C.J
1. This is an appeal against an order of the Subordinate Judge of Purnea, dismissing certain objections taken by the appellant, judgment debtor, to the execution of a decree held against him by the decree-holders, respondents. The decree in execution was a decree for arrears of a tenure dated July 10th, 1896, and was passed by the Calcutta High Court op its Appellate Side. In August 1897, an application for execution was presented in the Court of the District Judge who had passed the original decree. That application proved infructuous. So also did an application presented in August 1899. The orders of the Court striking off these applications maintained an attachment which had been effected upon another application the date of which does not appear. On July 9th, 1908, the decree-holders applied for execution of the decree as if it was what is called in this Province a rent-decree, that is a decree of the kind described in Section 65 of the Bengal Tenancy Act and Section 158B of the Bengal Tenancy Act, A decree for arrears of rent which is not governed by or does not fall within these sections is called a money-decree and not a rent-decree, and in this judgment when I speak of a rent-decree I mean a rent-decree as that expression is understood in this Province. The decree-holders in their application of July 9th, 1908, applied for the attachment of the tenure and at the same time for issue of a proclamation of sale, as they were entitled to do under Section 163 of the Bengal Tenancy Act, if the decree was a rent-decree. The Court ordered the tenure to be attached and further directed the preparation of a sale proclamation. In December 1939, the sale of the tenure was stayed by order of the High Court passed in a suit brought by a dar-patnidar of the property. In January 1910, the District Judge made an order giving effect to the High Court’s order of stay of the sale. At that time it had been held by the Calcutta High Court in the case of Maharaj Bahadur Singh v. Forbes 35 C. 737 ; 7 C.L.J. 652 that the decree now in execution was a rent-decree, but on appeal their Lordships of the Privy Council in Arthur Henry Forbes v. Maharaj Bahadur Singh 23 Ind. Cas. 632 ; 18 C.W.N. 747 ; 15 M.L.T. 380 ; (1914) M.W.N. 397 ; 12 A.L.J. 653 ; 27 M.L.J. 4 ; 41 I.A. 91 ; 41 C. 926 (P.C.) ; 1 L.W. 1059 reversed the decision of the High Court and held that the decree was not a rent-decree. Their decision is dated March 4th, 1914. Shortly after the decision of their Lordships the appeal in which an order had been made for stay of the sale, was disposed of by the Calcutta High Court and the decree-holders were free to proceed with the execution of the decree. Accordingly on November 23rd, 1914, they put in a petition asking the Court to proceed with the execution and they asked for the issue of a fresh attachment of the property and a fresh proclamation of sale. That application was made to the Subordinate Judge. It appears that on May 16th, 1912, the decree-holders had applied to the District Judge to transfer the case to the Subordinate Judge. The reason for that application appears from the application itself, viz., that in execution of a decree held by another person against the appellant some property was about to be sold and the present decree-holders, feeling doubtful whether they would be able to recover their demand by sale of the tenure, or from the judgment-debtor’s interest in the tenure, which they had attached, were anxious to share rateably in the proceeds of the projected sale in the other suit. They, therefore, applied to the District Judge to transfer the case to the Subordinate Judge and that was done.
2. One of the points taken in this appeal is, that the Subordinate Judge had no jurisdiction to execute this decree. It is contended that the decree was transferred only for a limited purpose, viz., for the purpose of enabling the decree-holders to obtain a share in the proceeds of the sale which was about to take place in another case. It is also contended that the order itself shows that the District Judge intended to keep pending in his Court the proceedings which had remained pending there for so long on account of the order for stay passed by the High Court. So far as I am aware, a decree cannot be transferred to another Court for execution for a limited purpose only. Either the decree is transferred or it is not transferred. If it is transferred, the Court to which it is transferred has power to execute the decree. But a close examination of the application of May 16th, 1912, and of the order of the Court passed thereon satisfies me, that the District Judge never intended to transfer the decree for execution in accordance with Section 39 of the Code of Civil Procedure. What he intended to do, and what he did, was to transfer the whole case to the Subordinate Judge under Section 24 of the Code. That this view is correct is shown very clearly by various circumstances. The first is that no attempt was made by any one to comply with the procedure prescribed by Order XXI, Rule 6, for the transfer of a decree for the purposes of execution. No copy of the decree was sent to the Subordinate Judge. No certificate was sent and no copy of any order for execution. What was sent was the whole file, and accordingly we find, under the order sheet immediately below the order of the District Judge transferring the case to the Subordinate Judge, a series of orders passed by the Subordinate Judge. The application shows that the decree-holders were afraid that the further execution of the decree might be barred by limitation and they particularly asked the Court to treat their application as one made in continuation of the previous application for execution. It has at times been doubted whether a decree can be executed at one and the same time by two different Courts and it may well be that the decree-holders thought that if they gave up their execution proceedings in the Court of the District Judge they would not be able to execute the decree in the Court of the Subordinate Judge. They, therefore, asked the District Judge to transfer the whole case to the Subordinate Judge and that is what was done. It appears further that on a later date the District Judge refused to re-transfer the case to his own file. I am, therefore, satisfied that there is no force in the contention that the Subordinate Judge had no jurisdiction to execute this decree.
3. The only other contention that was seriously pressed upon us was that inasmuch as the decree holders in the first instance took out execution of the decree as if it was a rent-decree in execution of which they were entitled to bring to sale the tenure itself, they were not entitled, after that decree had been held not to be a rent-decree, to obtain further execution of the decree as if it was a money-decree. It appears to me that the contention has only to be stated in order to be rejected. The decree has not been executed but inasmuch as it has been held to be not a rent-decree within the meaning of the Bengal Tenancy Act, the decree-holders can only execute it as a money-decree. They have asked the Court to issue a fresh attachment of the property and to prepare a fresh proclamation of sale and I am altogether unable to appreciate the contention that the decree-holders should not be allowed to do this.
4. These were the only two points that were pressed upon us. It was faintly suggested that on one occasion the Court had wrongly revived an application for execution which had been dismissed for default. There appears to be nothing in this. The application was dismissed in consequence of the receipt of an order from the Calcutta High Court. That was wrongly supposed to be the decree of the High Court in the case in which an order had been made for stay of the sale. When the mistake was discovered the Court very properly restored to the pending file the application which had been dismissed.
5. It was also faintly contended that the execution of the decree was barred by limitation. It is conceded, however, that there are no materials whatever on the present record on which it could be held that the further execution of the decree is barred by limitation. In fact the only foundation for the suggestion appears to be a remark made in a case which did not even arise out of the execution of this decree.
6. In my opinion the order of the Subordinate Judge is clearly right and I would dismiss this appeal with costs, Hearing fee five gold mohurs.
Sharfuddin, J.
7. I agree.
