JUDGMENT
Jwala Prasad, J.
1. This appeal is directed against the order of the District Judge of Gaya, dated the 5th May 1920, reversing that of the Subordinate Judge, dated the 17th of January 1920, and holding that the execution levied by the decree-holder in the Court of the 3rd Subordinate Judge of Gaya was incompetent and invalid.
2. The decree in question is a mor(Sic) decree passed by the Su(Sic) 1st Court, Gaya. Under the order of the District Judge passed subsequent to the said decree, re the distribution of civil business in the district, the Subordinate Judge, Third Court, Gaya, has now all the business, in his file, arising within the area in which the mortgaged property in question is situate. This order was apparently passed under Section 13, Clause (2) of the Bengal, N.-W.P. and Assam Civil Courts Act (XII of 1887). After the passing of the said order, an application for execution of the decree in question was filed in the First Subordinate Judge’s Court on the 7th of June 1919. It was found that the Court-fee paid upon the application was not sufficient and consequently the deficiency was directed to be supplied, which was done by the decree-holder on the 14th of July. The power-of-attorney or mukhtearnama was still wanting, and on the 22nd of July the decree holder was directed to file it. This was also done. On the 4th of August, the Subordinate Judge recorded the following order on the back of the petition:
Pergana Dadar is beyond the territorial jurisdiction of this Court. Return to the filing Pleader for being re-filed in the proper Court in four days.
3. After obtaining an extension of time, the execution petition was filed in the Court of the Third Subordinate Judge on the 13th August 1919. The petition was, however, registered on the 22nd of August. On receipt of the notice of execution, the judgment debtor filed an application on the 18th September 1919. objecting to the jurisdiction of the Subordinate Judge, Third Court, to execute the decree in question, on the ground that the decree was passed not by that Court, but by the Court of the First Subordinate Judge. The objection was overruled by the Subordinate Judge by his order of the 17th January on the ground that “the First Court, which passed the has ceased to have jurisdiction o(Sic) perty, which is now situate(Sic) diction of this Court,”(Sic)
4. Hence, the (Sic) in the C(Sic) A(Sic) deposited by the auction-purchaser on the 11th of February, The judgment-debtor made an application under Order XXI, Rule 90, for having the sale set aside, which is still pending. The sale has, therefore, not been confirmed yet.
5. The learned District Judge allowed the appeal filed by the judgment-debtor and set aside the order of the Subordinate Judge, Third Court, holding that the jurisdiction of the Subordinate Judge, First Court, extends over the whole district, including the area in which the property in question is situate, and that his jurisdiction was “not taken away by the District Judge arranging that work only from particular areas should come to him.”
6. The decree holder has consequently come to this Court in second appeal. He impugns the order of the learned District Judge on the following grounds:
(1) That the order passed by the District Judge under Section 13. Clause 2 of the Civil Courts Act (XII of 1887), distributing the work among his Subordinate Judgees, has transferred the business of the Subordinate Judge, First Court, to that of the Subordinate Judge, Third Court, with respect to civil work including the execution of the decree in question, relating to and arising within the area, in which the mortgaged property in question is situate, and that, therefore, under the new Section 150 of the present Code of Civil Procedure (Act V of 1908) the Subordinate Judge, Third Court, has the same powers and performs the same duties as those which were conferred and imposed under the Code of Civil Procedure upon the Subordinate Judge, First Court, from which the business was transferred. He, therefore, contends that the application for execution of the decree was properly filed in the Court of the Third Subordinate Judge.
(2) The next ground is based upon Section 37, Clause (6) of the Code of Civil Procedure, and it is contended that the Court of the First Subordinate Judge having ceased to have jurisdiction to execute the decree in question by virtue of the order of the District Judge re the distribution of Civil work, the Subordinate Judge, Third Court, shall be deemed to be the Court in which the suit was prosecuted and the decree was obtained.
7. Thirdly, it is contended that the decree must be considered to have been validly sent for execution by the Subordinate Judge, First Court, to the Subordinate Judge, Third Court, for execution under Sections 38 and 39 of the Code of Civil Procedure read with Order XXI, Rules 3 to 6.
8. We have been referred to a number of authorities as well as to the relevant sections of the Code of Civil Procedure in support of the aforesaid contentions. We have also fully beard the learned Vakil appearing for the respondent in this case. Under Section 38 of the Code, a decree may be executed, either by the Court which passed it or by the Court to which it was sent for execution. The decree in the present case was passed by the Subordinate Judge, First Court, inasmuch as he and he alone had jurisdiction to try the suit under Section 16 of the Code by reason of the mortgaged property being situate within his territorial jurisdiction, as prescribed and notified by the Government under Section 13, Clause (1) of the Civil Courts Act.
9. Section 37 of the Code of Civil Procedure defines the expression “Court which passed the decree” occurring in Section 38. We have nothing to do with Clause (a) of that section, which says that such a Court will be the Court of the first instance, when the decree is passed by another Court in the exercise of its appellate jurisdiction. We are concerned, however, with Clause (b) of the section. Under that Clause, the Court, which passed the decree, shall be deemed to include also the Court which would have jurisdiction to try such a suit at the time when the application for execution of the decree is filed, although that Court might not have originally pasted the decree. But in that case two conditions must essentially be fulfilled: (1) that the Court of first instance, which passed the decree, must have ceased to exist, and (2) that it must have ceased to have jurisdiction to execute the decree. It cannot at all be contended that any of the aforesaid conditions has been fulfilled in the present case. The Court of the First Subordinate Judge has jurisdiction throughout the district. The territorial jurisdiction thus conferred upon him can only be removed by a proper order and notification by the Local Government under Section 13, Clause (1) of the Civil Courts Act, This has not been done in the present case; and the effect of the order of the District Judge under Clause (2) of Section 13 of the said Act is simply to make arrangements for the distribution of the civil work in the district. It cannot and has not at all disturbed, or in any way curtailed, the territorial jurisdiction of the Subordinate Judge, First Court, which extends, as stated above, to the whole of the district including the area in which the mortgaged property in question is situate. This also negatives the second condition in the clause, inasmuch as the jurisdiction to execute the decree rests in the Subordinate Judge, First Court, not only by virtue of his territorial jurisdiction but also by virtue of his having passed the decree. The execution of a decree is a continuation of the suit and is a proceeding arising out of the suit. The Court, which has jurisdiction to try the case, has also jurisdiction to execute its decree. This is based also upon the principle that the Court must have power, to the exclusion of any other Court, to execute its own decree or order, for otherwise the power to pass an order would be an empty one, unless and until the authority which passes it has also power to enforce it. Therefore, in order that any other Court shall be deemed competent to execute the decree passed by the First Court of the Subordinate Judge, it must have been shown that the above conditions were fulfilled. As observed above, they were not at all satisfied and consequently the jurisdiction of the Subordinate Judge, First Court, to execute the decree in question still continues in spite of the Subordinate Judge, Third Court, having some portion of the business appertaining to a certain area in the district of Gaya, which formerly used to be done in the First Court of the Subordinate Judge.
10. There was a conflict of opinion in the Calcutta and the Madras High Courts in cases arising under Section 37, Clause (b), as to whether an application for execution should be filed in the first instance in the Court which passed the decree, or should it be filed in the Court which is also competent to execute the decree under the aforesaid provision in Section 37. That conflict was apparently set at rest by Section 150, under which, when the business is transferred to another Court, the said Court shall have the same powers and shall perform the same duties as appertained to the Court from which the business was so transferred. Section 150 is an enabling section and possibly relieves the cumbrous procedure enunciated in the decisions of the Calcutta High Court, whereby the decree holder was required to file an execution petition in the first Court and then to obtain a transfer of the execution to another Court. It enables the decree-holder to file the petition in the Court which ultimately has to execute the decree. In order to apply Section 150, it must be shown that the business in question was transferred from the Court of the First Subordinate Judge to that of the Third Subordinate Judge. We have not got the order of the District Judge re the distribution of civil work, but from the purport of it given by him in his judgment, it is obvious that the works arising from the particular areas were allotted to the Subordinate Judge, Third Court. They obviously refer to the works arising within that area subsequent to the order of the District Judge, namely, to suits, etc., that would be instituted subsequently to that order. There is nothing to show that the decree in question or the execution thereof was transferred to the Court of the Third Subordinate Judge, The transfer of a particular case is regulated by Section 24 of the Code of Civil Procedure, and it is conceded that there was no transfer made by the District Judge under that section in the present case. The order of the District Judge distributing the civil work in the district did not, as I have already observed, transfer the case to the file of the Subordinate Judge, Third Court. Reliance has been placed upon the case of Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 281 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63. That case, far from helping the appellant, tends to help the respondent, inasmuch as it was held that, notwithstanding the fact that the jurisdiction, which the Court had at the time of the decree, was taken away from it and assigned to another Court at the time of the presentation of the application, the Court which passed the decree is still a proper Court for execution within the meaning of Clause (5) of Article 182 of the Limitation Act, At page 832 Pages of 42, M,–[Ed.], the learned Chief Justice observes:
The jurisdiction of the Court, which passed the decree, was sufficiently recognized by the decisions, as I have pointed out, and indeed had never been doubted up to that time, and there was, therefore, no need to re-affirm it.
11. This passage negatives the proposition urged on behalf of the appellant.
12. He, however, relies upon the succeeding passage, which runs as follows:
The case of direct application to the Court, to which the area had been trans, ferred, was met by the enactment of the new Section 150, which was in terms wide enough to authorise that Court to entertain in the first instance any application which might have been made to the Court which passed the decree.
13. The words “the Court to which the area had been transferred” are important and obviously mean that the jurisdiction must have been validly and properly vested in the Court other than the Court which passed the decree, by reason of the contingencies referred to in Clause (2) of Section 37 having arisen, namely, that the Court of first instance (1) ceased to exist, and (2) ceased to have jurisdiction to execute the decree. Therefore, these conditions must be fulfilled for the application of Section 150 also. When these are fulfilled, then the application may be made to the Court which thus receives jurisdiction, instead of its being made to the Court of the first instance, as was the view of the Calcutta High Court. Nor do I think that the words of Sadasiva Aiyar, J., at page 840 Pages of 42, M,–[Ed.] of that ruling, in any way, affect the case of the respondent so far as the present case is concerned. His Lordship says:
I am still inclined to think that Section 150 was enacted so as to take away both rights from the Court which ceased to have territorial jurisdiction.
14. It has not been shown that the Subordinate Judge, First Court, ceased to have territorial jurisdiction over the property sought to be sold in execution of the decree in question. Therefore, this contention must also fail.
15. Now, was the decree sent for execution to the Court of the Third Subordinate Judge under Section 38 read with Order XXI, Rales 4 to 6? No doubt, the application was at first filed in the Court of the First Subordinate Judge, who had jurisdiction to execute the decree, but ha refused to entertain it on the ground that he had no jurisdiction over the Perganah in which the property in question is situate. He, therefore, refused to exercise jurisdiction in the matter and returned the application to be filed in the proper Court, rightly or wrongly. We have shown that he did it under a misapprehension of fact that he had ceased to exercise jurisdiction over the area in which the property is situate. When he thus refused the application, he could not possibly send it for execution to another Court.
16. The application was then taken back by the decree-holder and filed in the Court of the Third Subordinate Judge. No doubt, had the application bean entertained by him, then any defect in mere procedure, such as omission to transmit to the Court, to which the application is seat, a copy of the decree and a necessary certificate, etc, under Order XXI, Rule 6, would not vitiate the execution proceedings or the sale held thereunder. To that extent, the ruling in the case of Abbubaher Sahib v. Mohidin Saheb 20 M. 10 : 7 Ind. Dec. (N.S.) 7 is applicable, but where the application for execution is not at all enertained by the Court which alone had jurisdiction to entertain it, nor is it properly sent by that Court to another Court, the other Court will not derive any jurisdiction by the mere filing of the application in that Court on the refusal of the Court of the first instance to entertain it.
17. The respondent-judgment-debtor had raised the objection as to jurisdiction of the Subordinate Judge, Third Court, at the very first opportunity offered to him after he received the notice.
18. We have thus disposed of all the contentions urged by the learned Vakil on behalf of the appellant, and we do not think that any substantial ground has been made out to interfere with the order of the District Judge. We do not think it necessary to discuss in detail the authorities referred to at the Bar, but the result of our consideration of those authorities has bean as set forth above. We here give only reference of those cases: Kali Pauo Mukerjee v. Dino Nath Mukerjee 25 C. 315 : 13 Ind. Dec. (N.S.) 211; Bachu Koer v. Golab Chand 27 C. 272 : 14 Ind. Dec. (N.S.) 180; Kartick Nath Pandey v. Tilukdhari Lall 15 C. 667 : 7 Ind. Dec. (N.S.) 1028; Panduranga Mudaliar v. Vythi linga Reddi 30 M. 537 : 2 M.L.T. 466 : 17 M.L.J. 417; Prem Chand Dey v. Mokhoda Debt 17 C. 699 (F.B.) : 8 Ind. Dec. (N.S.) 1008; Jahar v. Kamini Debi 28 C. 238 : 5 C.W.N. 150; Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) : M.W.N. 205 : 1 L.W. 251; Kamini Sundari Chaodhrani v. Kali Prosunno Ghose 12 C. 225 (P.C.) : 12 I.A. 245 : 4 Sar. P.C.J. 652 : 9 Ind. Jur. 437 : 6 Ind. Dec. (N.S.) 153; Bank of Bengal v. Sarat Chandra Mitra 48 Ind. Cas. 943 : 4 P.L.J. 141 : (1919) Pat. 155 and Rameshwar Lal Bhagat v. Thakur Jagadeswar Dayal Singh 49 Ind. Cas. 94.
19. The result is that the appeal is dismissed with costs.
Adami, J.
20. I agree.