Sahai, J.:— This appeal by the judgment-debtors is directed against an order dated 22-8-1952, whereby the Subordinate Judge, First Court, Arrah, has dismissed their objection under Section 47 of the CPC, in Execution Case No. 108 of 1950.
2. Shortly stated, the facts of the case we as follows: On 20-1-1950, a decree passed by the Privy Council in an appeal arising out of Suit No. 1282 of 1926 of the Calcutta High Court was transferred by the Calcutta High Court to Arrali for execution. On 25-1-1950, Maharaj Kumar Kamal Singh and others, heirs and legal representatives of the decree-holders, filed an application before the Subordinate Judge, First Court, Arrah, for execution of the decree. This was numbered as Execution Case No. 7 of 1950. On 6-10-1950, that execution case was dismissed on part satisfaction. On 9-10-1950, the heirs and legal representatives of the decree-holders filed a fresh application for execution in the same Court. This was numbered as Execution Case No. 108 of 1950.
3. On the 26-2-1952, the judgment-detors filed their objection under Section 47 of the CPC in Execution Case No. 108 of 1950 and that was numbered as Miscellaneous Case No. 6 of 1952. The Subordinate Judge, First Court, has dismissed this miscellaneous case and rejected the objections raised by the judgment-debtors. Hence the appeal.
4. One of the objections taken by the judgment-debtors before the Court below was that Execution Case No. 108 could not proceed because the Court at Arrah had become ‘functus officio’ in view of the fact that it had already sent a certificate as required under Section 41 of the CPC, to the transferor Court, i.e, the Calcutta High Court.
5. The learned Subordinate Judge overruled this objection by saying that
“no certificate as contemplated under section 41 had been sent and at best a mere information was conveyed regarding part satisfaction.”
6. The only point which Mr. D.N Varma has seriously raised before us on behalf of the judgment-debtors-appellants is that a certificate in proper form was sent to the Calcutta High Court by the transferee Court at Arrah and hence that Court teased to have jurisdiction to execute the decree on sending that certificate. He has produced before us a certified copy of the register of execution cases maintained in the First Court of Subordinate Judge at Arrah relating to Execution Case No. 7 of 1950.
7. This document shows that the execution case was dismissed on part satisfaction on 6-10-1950 and that the result of the execution case was sent on 18-9-1951. He has also produced a certified copy of a certificate dated 17-9-1951, which purports to have been sent under Section 41 of the CPC, by the Subordinate Judge, First Court Arrah, to the Calcutta High Court, intimating that Execution Case No. 7 of 1950 had been dismissed on part satisfaction on 6-10-1950.
8. Form No. (J)32 at page 161 of the General Rules and Circulars Orders, Civil, Vol. II has been prescribed by this High Court for certificates to be issued under Order 21, rule 6(b), and also for certificate under Section 41 of the CPC. On examining the certified copy of the certificate which Mr. Varma has produced, I find that it is in proper form.
9. It is well settled that the transferee Court ceases to have jurisdiction to execute a decree, transferred to it when once it sends a valid certificate under S. 41. Appearing for the respondent, Mr. B.C De has not contested this point. He has however contended that the certificate, a certified copy of which Mr. Varma has produced, is not a valid certificate and the Arrah Court had no jurisdiction to issue it on the date on which it was issued, i.e, on 17-9-1951.
10. He has made the submission that the transferee Court is not required under S. 41 to certify to the transferor Court the result of any particular execution case and no certificate under that section could be issued by the Subordinate Judge, First Court, Arrah, on 17-9-1951 when Execution Case No. 108 of 1950 was already pending before him. There is a good deaf of force in this submission.
11. Section 41 runs as follows:
“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.”
12. It seems to be clear that a certificate under this section can be issued only in the following circumstances:
“(1) if the tranferee Court has succeeded in fully executing the decree, (2) if the transferee Court has completely failed to execute the decree within the limits of its jurisdiction, or (3) if the transferee Court has executed the decree partly andi has failed to execute the remaining part of the decree within the limits of its jurisdiction.”
13. The mere fact that one execution case has been dismissed on part satisfaction cannot prevent the transferee Court from entertaining a fresh application for execution. When, therefore, the Subordinate Judge, First Court, Arrah, entertained the application for execution in Execution Case No. 108 of 1950 on 9-10-1950, he undoubtedly had jurisdiction to entertain it. While Execution Case No. 108, was pending, it could not be said that the, Court had executed the decree or had failed to execute any part of it within its jurisdiction.
14. That being so, the Court had no power to issue a certificate under S. 41 during the pendency of Execution Case No. 108 of 1950.
15. I will now proceed to consider the cases which have been cited at the Bar. In — ‘Muhammad Ibrahim v. Chhatto Lal’, AIR 1926 Pat 274 (A), a Division Bench of this Court laid down that a
“court to which a decree is sent for execution has no jurisdiction to deal with the execution case after it takes action under S. 41 of the Code.”
16. It appears from this decision, however, that a certificate can be issued when the transferee Court has fully executed the decree or has executed it so far as that Court has been able to execute it within its jurisdiction. As the certificate in that case was issued when no execution was pending before the transferee Court, it was held that Court ceased to have jurisdiction on sending the certificate.
17. In — ‘Sheshaiyer Rajamanner Aiyer v. Madanmohan Patnaik*’, AIR 1932 Pat 286 (B), another Division Bench of this Court relied upon — ‘Abda Begam…(Decree-Holder); v. Muzaffar Husen Khan…(Judgment-Debtor).*’, 20 All 129 (C), in which it was held
“that the Court to which the decree is transferred for execution will retain its jurisdiction to execute the decree until the execution has been withdrawn from it, or until it has fully executed the decree and has certified that fact to the. Court which sent the decree or has executed it so far as the Court has been able to execute it within its jurisdiction and has certified that fact to the Court which sent the decree, or until it has failed to execute the decree and has certified that fact co. the Court which forwarded the decree”.
18. Thus, this decision fully supports the view which I have already expressed that a certificate under S. 41 can be issued only in the circumstances which I have mentioned above.
19. Mr. De has relied upon — ‘Firm Shiva Dayal Mal Suraj Blian v. Rajeswar Prasad’, AIR 1937 All 766 (D). In that case, the parties entered into compromise while the execution of some decrees were pending in the transferee Court. Under the compromise, the decrees were to be deemed to be satisfied if certain sums of money were paid by the judgment-debtors to the decree-holders within a fixed period and in case of failure, the full amounts of the decrees were to be recovered by execution. The judgment-debtors failed to pay the amounts within the fixed period.
20. Hence the decree-holders filed applications praying that executions of the decrees should proceed. Before these applications were filed, however the transferee Court had already sent a report or a certificate purporting to be one under Section 41 of the CPC to the transferor Court. Their Lordships held that the original execution cases had not been dismissed but were in existence.
21. In arriving at this conclusion, they took into consideration the intention of the parties and of the transferee Court which, according to them, was not that the original applications for execution should be finally dismissed on the basis of the compromise. Some exception may be taken to the intention of the parties and the transferee Court being made the basis of the conclusion that the original execution cases were still pending but, once that conclusion was reached, it followed, that the certificate which purported to be one under S. 41 was invalid as it was not issued in circumstances contemplated by that section.
22. Their Lordships held accordingly that the certificate issued by the transferee Court in that case did not operate to deprive it of jurisdiction to execute the decree transferred to it. Hence this case supports the view that a certificate issued by a transferee Court when execution of the decree is pending before it has no effect.
23. Mr. De has also placed reliance upon — ‘Ram Babu v. Chaudhari Sanwal Das’, AIR 1938 All 412 (E). In that case, an execution case was dismissed on part satisfaction and the transferee Court passed an order that the result should be communicated to the transferor court. On the very next day, a fresh application for execution was filed. Their Lordships found that there was neither an order for the preparation of a certificate under S. 41 nor was any such certificate actually sent to the transferor Court. Hence, they held that the transferee Court had jurisdiction to entertain the second application for execution.
24. As a certificate in proper form purports to have been sent by the transferee Court in the present case, I do not think that the decision in that case has any relevancy on the question which I have to consider.
25. On the other hand, Mr. Varma has relied upon the decision of a single Judge in — ‘Shiam Lal v. Koerpal’, AIR 1925 All 179 (F). It has been held in that case that the transferee Court ceases to have jurisdiction to execute the decree transferred to it after it sends a certificate under S. 41 rightly or wrongly. As a Division Bench of the, same High Court has dissented from this decision in ‘Firm Shiva Dayal Mal Suraj Bhan's case (D)’ it is not necessary to discuss it any further.
26. Another case on which Mr. Varma has relied is — ‘Hira Lal Anant Ram v. Sherumal’, AIR 1926 Lah 113 (G). That case has no application to the facts of the present case as their Lordships had to consider the powers of the transferee Court and were not concerned with the question which has to be decided in this case.
27. The last case on which Mr. Varma has placed reliance is the decision of a Single Judge in — ‘G.V Rattan Chand & Co. v. Haveli Shah’, AIR 1933 Lah 149 (H). In that case, the record did not show that a certificate as required under S. 41 was actually sent but the learned Judge held that, in view of an order of the transferee Court to the effect that the decree had been satisfied in full, that Court had ceased to have jurisdiction to exscute the decree any further. Thus, that case has also no application to the facts of the present case.
28. As I have already said, the Subordinate Judge, First Court, Arrah, had no jurisdiction on 17-9-1951 to issue a certificate under S. 41 of the Code because Execution Case No. 108 of 1950 was pending before him on that date. Indeed the Subordinate Judge does not appear to have applied his mind to the question whether such certificate could be issued by him on that date.
29. There is no order in the order-sheet of Execution Case No. 7 of 1950 nor is there any order in the order-sheet of Execution Case No. 108 of 1950 to the effect that such a certificate should be sent to the Calcutta High Court. It appears that the office prepared the certificate under the misapprehension that the result of each execution case had to be certified to the transferor Court under S. 41 and the Subordinate Judge signed it without thinking over the matter. The act of sending the certificate was, therefore, not at all a judicial act. In these circumstances, I hold that the certificate was invalid and it was issued without jurisdiction. As the transferee Court has not yet sent any valid certificate under S. 41, the Court below has rightly overruled the judgment-debtor's objection that it has ceased to have jurisdiction to execute the decree. The appeal is, accordingly, dismissed with costs.
Ramaswami, J.:— I agree.
V.B.B
30. Appeal dismissed.