G.K Misra, J.:— The decree-bolder obtained a money decree in the Court of the Munsif, Vizianagaram on 4-10-1952. It was confirmed in appeal on 31-8-1953. On 20-4-1954 E.P No. 480 of 1954 was filed in the Court of the Munsif, Vizianagaram. On 28-6-1954 a non-satisfaction certificate was issued by the Munsif, Vizianagrrtn to the Mnnsif, Jeypore, through the District Judge. On 23-9-1954, EP. No. 147 of 1954 was filed before the Muasif, Jeypore. On 17-4-1958 the execution proceeding was closed on part satisfaction. This result was communicated to the Munsif, Vizianagaram on 25-4-1958. On 17-10-1960 E.P No. 105 of 1960 was filed in the Munaif's Court, Jeypore. On 11-11-1960 the execution proceeding was dismissed as not maintainable. On 16-7-1963, E.P No 1179 of 1963 was filed in the Munsif's Court, Vizianagaram. That Court sent a non-satisfaction certificate to the Munsif, Jeypore on 3-1-1964. The certificate was received on 8-1-1964. E.P No. 74/94 of 1964/65 was filed on 8-7-1964. Two objections were raised by the judgment-debtor that the decretal dues had been completely paid and that the execution was barred by limitation. The executing Court overruled both the objections. Before the appellate Court the judgment-debtor abandoned the plea of payment. The appellate Court however held that the execution proceeding was barred by limitation. Against the reversing order of the appellate Court this Miscellaneous Appeal has been filed by the decree-holder.
2. The following questions arise for consideration:—
(1) Whether the order dated 25-4-1058 communicating the result that the execution proceeding was closed on part satisfaction is a non-satisfaction certificate under section 41, Civil Procedure Code.
(2) Whether E.P No. 105 of 1960 pending in the Court of the Munsif, Jeypore from 17-10-1960 to 11-11-1960 constitutes a step in aid of execution.
(3) Whether the failure on the part of the decrea-holder to object to the dismissal of E.P No. 105 of 1960 as not maintainable constitutes res judicata in respect of an objection that a non-satisfaction certificate was despatched by the transferee Court to the transferor Court.
(4) Whether E.P No. 1179 of 1963 in the Vizianagaram Court was not in a proper Court as no non-satisfaction certificate had been sent by the Jeypore Court to the vizianagaram Court.
3. It is to be noted that E.P, No. 147 of 1954 in the Court of the Munsif, Jeypore was closed on 17-4-1958 and this result was communicated to the Vizianagaram Court on 25-4-1958. The question is whether mere communication of the order constitutes a non-satisfaction certificate under section 41, Civil Procedure Code which runs thus:
“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.”
4. There is some conflict of authority on this point. The matter is fully discussed in Prahlad Prasad v. Thakur Prasad . A.I.R 1961 Pat. 149.. Their Lordships observed that the act of sending a certificate under section 41 is something in the nature of a judicial act and a formal order of the transferee Court to that effect would be necessary to satisfy the requirements of section 41. Where there is no order of the transferee Court directing that a certificate should he issued under section 41 and where it did not appear from the order-sheet that any such certificate was in fact prepared and signed by the transferee Court and sent to the transferor Court, but the entry in the suit register indicated that an information was sent to the transferor Court relating to the dismissal of the execution case, there is no non-satisfaction certificate as required by law. With respect I am inclined to accept the view as laying down the correct law. The communication made on 25-4-1958 cannot be construed as constituting non-satisfaction certificate.
5. If a non-satisfaction certificate was not despatched by the transferee court to the transferor court, as has already been held, E.P No. 105 of 1960 was properly filed before the Munsif, Jeypore. It had complete jurisdiction over the matter. Unfortunately the Munsif, Jeypore dismissed E.P No. 105 of 160 as not maintainable on the erroneous view that the communication made on 25-4-1958 consituted a non-satisfaction certificate. The decree-bolder became satisfied with the order passed on 11-11-1960. The discussion would therefore proceed on the assumption that the order was correct, though it was contrary to law. The question therefore arises whether this execution would constitute a step in aid so as to save limitation. On identical facts it was held in Sheshaiyer v. Madanmohan . A.I.R 1932 Pat. 286., that it would constitute a step in aid. Their Lordships said that if the Court to which a decree is sent for execution while retainsng jurisdiction to execute the decree returns an application for execution which was properly made to it under a mis apprehension, that will not prevent the making of the application from being tantamount at least to a step in aid of execution.
6. The further question for consideration is whether the order of the executing Court on 11-11-1960 that a non-satifaction certificate had been sent to the Vizianagaram Court and as such the execution before the Munsif, Jeypore was not maintainable constitutes constructive res judicata. It is well settled that an objection which ought to and might have been taken at an earlier stage of the execution constitutes res judicata at a later stage. That principle would have full application to this case and accordingly the decree-holder is precluded from raising the objection that a non-satiafaotion certificate was not sent to the Vizianagram Court, despite the real position it had not been sent. If res judicata operates the assumption would be that a non-satisfaction certificate was sent to the Vizianagaram Coart.
7. Law is well settled that despite the despatch of a non-satisfaction certificate by the transferor Court to the transferee Court, the transferee Court retains jurisdiction to execute the decree in respect of all matters other than those which have been transferred to the transferee Court. This has been fully discussed in Giridhari Lal v. Thakurdas . A.I.R 1964 Orissa 170.. The question however becomes academic in this case as it has to be assumed that a non-satisfaction certificate had been despatched to the Vizianagaram Court and accordingly the Vizianagaram Court had jurisdiction to entertain E.P No. 1179 of 1963 even though the relief might have covered properties situated within the jurisdiction of the Munsif, Jeypore. In this view of the matter the fourth question raised by Mr. Ramdas does not arise for consideration.
8. In view of the aforesaid conclusions, the execution application is within limitation and the judgment-debtor's objection must be overruled. The order of the lower appellate Court is set aside and the Misc appeal is allowed. In the circumstances parties to bear their own costs throughout.
9. Appeal allowed.