P.N Mitra, J.:— This appeal is on behalf of the judgment-debtor No. 1 and it arises out of an application made by him under s. 47, Code of Civil Procedure, which was dismissed by the learned Subordinate Judge, First Court, 2-Parganâs, by his order dated February 22, 1947.

The appellant's father Nagendra Kumar Basu deceased held a patni tâluk under the decree-holder Rajkumari Ushaprobha De, Nagendra died on January 11, 1938, leaving behind a will by which he appointed his three sons, including the appellant Sachindra, as executors. Sometime in February, 1938, application for probate was made by the three executors and probate was granted to all of them in the month of April of that year. On May 1, 1939, the patni tâluk was sold under the Patni Regulation for arrears of rent which had accrued due during the latter half of the year 1345 B.S and was purchased by the respondent for Rs. 600. As only a small portion of the arrears, which amounted to Rs. 7,656 and odd, was realised by this patni sale, the respondent, on November 5, 1940, instituted a suit in the Court the Subordinate Judge of Jessore against the three sons of Nagendra, described as executors to his estate, for recovery of the balance of the demand. The suit was dismissed by the trial court, but on appeal by the respondent this Court on February 9, 1945, passed a decree in her favour for Rs. 7,056 and odd. An application was thereafter made by the respondent to the Court of the Subordinate Judge, Jessore, which, under the provisions of s. 37, cl. (a), Code of Civil Procedure, was to he considered the court which passed the decree, for transfer of the decree to the Court of the Subordinate Judge, First Court, 24-Parganâs, and thereupon the former court sent copies of the judgment and decree of this Court with a certificate of non-satisfaction direct to the latter court instead of sending them to the Court of the District Judge, 24-Parganâs, as it ought to have done under the provisions of O. XXI, r. 5 of the Code. After the papers had been received in the Court of the Subordinate Judge, First Court, 24-Parganâs, the respondent filed her application for execution in that court on September 28, 1945. By this application the respondent prayed for execution of the decree against the judgment-debtor No. 1, Sachindra Kumar Basu, by attachment and sale, of premises, No. 12/2, Ismail Street, appertaining to holding No. 199, Sub-Division B, Division 4, of Dihi Panchannagram. She stated that under the will of his father, Sachindra obtained this property in sixteen annas share and was in absolute possession thereof as owner. On the same day, the learned Subordinate Judge ordered attachment to issue, and the attachment was actually effected on September 30, 1945. Thereupon, on November 20, 1945, the judgment-debtor No. 1 came and filed an application under s. 47, C.P.C, objecting to the execution, principally on the grounds that the execution proceedings were illegal and ultra vires, in view of the provisions of O. XXI, r. 5, C.P.C, that the decree, having been passed jointly against the three executors, it could not be executed against the judgment-debtor No. 1 alone, and that the decree being one for arrears of rent it could not he executed against any property of the judgment-debtors other than the defaulting tenure. In view of the first ground of objection, the decree-holder applied to the learned Subordinate Judge on March 15, 1940, for sending the decree and the certificate of non-satisfaction back to the Jessore court with a request that the same might he retransmitted to the court of the District Judge, 24-Parganâs. This was done, and thereafter the Jessore court sent the decree and the certificate of non-satisfaction to the District Judge, 24-Parganâs, who received them on April 18, 1946, and transferred the decree to the Court of the Subordinate Judge, First Court, for execution. A further objection was then filed by the judgment-debtor No. 1 on June 17, 1946, objecting that, although the transfer of the decree by the District Judge might be said to have vested the court with jurisdiction, the orders previous thereto, more particularly the order of attachment, were illegal and without jurisdiction. The appellant's objections then came on to be heard by the learned Subordinate Judge and were overruled by him as stated above.

Mr. Chandra Sekhar Sen, appearing for the appellant, has taken three points before us. His first point is that this was a decree passed against Sachindra and his brothers in their representative capacity as executors to their father's estate and the execution is not maintainable against one of the executors alone. He says that, under O. XXXI, r. 2, of the Code, the suit has to be brought against all the executors who have proved the will, and the decree that is passed against them is really passed against one legal entity or unit, viz., the estate of the testator, and the principle of O. XXXI, r. 2, of the Code, must be extended to execution proceedings as well. Mr. Sen has not cited any authority in support of his contention.

With the consent of the parties, we have looked into the paper-book of the High Court Appeal (F.A No. 216 of 1941) in which the plaint in the suit was printed. It appears that in the plaint Sachindra and his brothers have been described as executors to the estate of their deceased father, but in the decree of this Court the respondents are simply Sachindra Kumar Basu, Hemanta Kumar Basu and Anil Kumar Basu without any description being given of them as executors. Disregarding this circumstance and taking the decree to have been passed against the defendants against whom the suit had been brought, it has to be seen what the real nature of the claim in the suit and the decree passed therein is. The arrears of rent for which the suit was brought accrued due after the executors had proved the will and entered upon the demised premises. In such circumstances, the lessor has an election to sue the executors in their representative capacity or to sue them personally as assignees of the term: Williams on Executors, 12th Ed., p. 1150. In para. 2 of the plaint it is stated that—

After his (Nagendra's) death the defendants as executors to his estate and as his sons and heirs, became the owners in possession of the said patni mahal and began to exercise ownership and possession in the said patni mahal by realising rents from the tenants and by holding the same in khâsh like their father and were and became liable to pay the said patni rents to the plaintiff.

This appears to us to be a claim to enforce the personal liability of the executors for rent accrued due after their entry upon the demised premises. And turning to the decree of this Court, one does not find any direction therein for payment of the decretal money out of the property of the deceased. We are of opinion, therefore, that the decree was passed against the executors personally in a suit to enforce their personal liability, and Mr. Sen's point does not really arise at all. But, as the point has been argued, we may briefly record our opinion upon it.

Section 52, sub-s. (1), of the Code provides that—

Where a decree has been passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

“Any such property” means any such property in the possession of the judgment-debtor, as sub-s. (2) provides that, where no such property remains in the possession of the judgment-debtor, the decree may be executed against him personally in the circumstances and to the extent mentioned in that sub-section. When an executor is in possession of any portion of the estate of the testator either in his capacity as executor or claiming to hold it as a legatee, we do not see why a decree passed against him and his co-executors in their representative capacity cannot be executed against him to the extent of the assets in his hands as a “party” against whom a decree has been passed as the legal representative of a deceased person. That this could be done was taken for granted in Susil K. Mitter v. Samarendra Nath Mitter and Nemathanpatti M.M Pl. Annandhana Chatram v. P.K.P.R.M Raman Chettiar And in U. Nyo v. U. Po Hlaing, Dunkley, J. said:—

It is plain that a decree passed against persons as legal representatives is a joint and several decree. Execution can be taken out against any one, or any number, or all of them, and any on of them can be made to satisfy the whole amount of the decree to the decree-holder, and he will then, on so satisfying the decree, have a right of contribution against the other legal representatives in proportion as they each obtained the property of the deceased.

No doubt the learned Judge was contemplating that the particular legal representative, upon whom execution was going to be levied, had assets in his bands sufficient to satisfy the whole decree.

Whatever authority there is, therefore, is against Mr. Sen's contention, and we would have overruled it if we had thought that it really arose.

Mr. Sen's second point related to a question under s. 168A of the Bengal Tenancy Act. He wanted to raise a contention that, as the patni had been created long before the Transfer of Property Act came into force, merger of the patni in the zemindâri interest of the decree-holder after her purchase at the patni sale could not he assumed as a matter of law so as to attract the proviso to s. 168A(1). On Mr. Sen's attention being drawn to a statement in the judgment of the court below that “That the “original tenure has ceased to exist in the present case is “admitted,” Mr. Sen did not pursue the point any further and nothing more need he said about it.

The third point taken by Mr. Sen raises the question of the validity of the attachment that was effected on September 30, 1945. Mr. Sen's contention is that, although the subsequent transfer of the decree to it by the District Judge, 24-Pargands, vested the Court of the Subordinate Judge, First Court, with jurisdiction to proceed with the application for execution which had already been filed, the order for attachment passed on September 28, 1945, and the attachment effected thereunder previous to the said transfer were null and void, as at that time the Subordinate Judge, First Court, had no jurisdiction to execute the decree which had been transferred to him in disregard of the provisions of O. XXI, r. 5 of the Code for the proposition that, where in contravention of the provisions of O. XXI, r. 5, which corresponds to the 6th para, of s. 223 of the Code of 1882, a decree is transferred direct to a Subordinate Court in another district and not to the District Judge of that district, the transferee court has no jurisdiction to execute the decree. Mr. Sen has relied upon the case of Dehi Dial Sahu v. Moharaj Singh. That was a case under the Code of 1882. In that case, a decree for money was passed by the Munsif of Daltonganj. On application by the decree-holder to have it sent for execution to the court of the Munsif of Aurangabad, within whose jurisdiction the judgment-debtor had immovable properties, the Munsif of Daltonganj, in disregard of the last para, of s. 223, sent it direct to the Munsif of Aurangabad instead of sending it to the District Judge of Gaya. Prinsep and Ghose, JJ. held that it was not a mere irregularity and that the Munsif of Aurangabad had no jurisdiction without an express order of the District Judge of Gaya passed under s. 226, which corresponds to O. XXI, r. 8 of the present Code. The learned Judges added that the scheme of the Code was to vest the District Judge with supreme authority in the matter of erection of a decree passed by a court situate in another district and that it was only under an order of the District Judge sending the decree to it for execution that a subordinate court could acquire jurisdiction in the matter. Until such an order was made no subordinate court had jurisdiction to execute such a decree.

The only other case in this Court hearing on the point which was cited at the bar is the case of Prakash Chandra Sarkar v. Pandey Baldeo Ram. There an application was made to the District Judge of Gaya for execution of a decree which had been passed by him, and thereafter, on being moved by the decree-holder, he sent the application and the copy of the decree with the certificate of non-satisfaction direct to the Subordinate Judge of Palamau instead of transmitting them to the Judicial Commissioner of Chhota Nagpur as he ought to have done. The Subordinate Judge of Palamau refused to proceed in the matter and passed an order dismissing the application for execution. Stephen and Mallik, JJ. held that the Subordinate Judge acted erroneously, for if he had no jurisdiction to proceed in the matter, he should have returned the papers to the District Judge of Gaya in order that he might adopt the correct procedure, and the learned Judges set aside the order of dismissal and directed the Subordinate Judge to do that which he ought to have done.

The rule enunciated in Debi Dial's case (supra) was affirmed by the Patna High Court in the case of Kunja Behari Singh… v. Tarapada Mitra…. and was followed in the Lahore High Court in the case of Pearey Lal Debi Sahai v. Nanne Mal-Panna Lal by Dalip Singh, J., who felt himself hound by the weight of authority in the matter. Coldstream, J. of that Court, however, struck a distinct note of dissent in the case of Chetan Lal v. Jagat Prasad, and held that non-compliance with the provisions of O. XXI, r. 5, was a mere irregularity in procedure, which could he waived. The question next came up before the Lahore High Court in the case of Barkat Ram v. Bhagwan Singh. There a decree for the recovery of Rs. 68,000 and odd was passed by the Senior Sub-Judge, Ambala, in favour of Rai Bahadur Banarsi Das against five persons. Benarsi Das assigned the decree to Bhagwan Singh, and on the application of Bhagwan Singh, the senior Sub-Judge, Ambala, sent the decree to the Senior Sub-Judge, Delhi, for execution and not to the District Judge of Delhi, as he should have done. Thereafter Bhagwan Singh applied to the Senior Sub-Judge, Delhi, for execution of the decree against one of the judgment-debtors Barkat Ram by attachment and sale of his interest in a partnership between him and Sardar Bahadur Dharam Singh. Various objections were thereupon taken by Barkat Ram which gave rise to long-drawn proceedings and two appeals to the High Court, and it was after the case had been remanded to the lower court for the second time that Barkat Ram for the first time took the objection that all the proceedings were null and void for contravention of the provisions of O. XXI, r. 5. This was overruled by the Senior Sub-Judge, Delhi, and the appeal from his order was heard by Din Mohammad, J. sitting singly. That learned Judge approved of the decision in Debi Dial's case and said that he preferred to follow Dalip Singh, J. rather than Coldstream, J. He held that, as the Senior Sub-Judge, Delhi, had, independently of an order of transfer by the District Judge, no jurisdiction to execute the decree of the Ambala Court, all the proceedings taken by him so far were null and void. This decision was reversed on Letters Patent Appeal by a Division Bench composed of Tek Chand and Beckett, JJ.: Bhagwan Singh v. Lala Barkat Ram. Tek Chand, J., by whom the judgment of the Court was delivered, took the view that the case was not one of inherent lack of jurisdiction, territorial or pecuniary, over the subject-matter, but was merely one of irregular assumption of it, the irregularity consisting in non-compliance with the procedure prescribed for the transmission of the decree and the certificate, and this irregularity could be waived and must, in the circumstances of the case, be taken to have been waived by the judgment-debtor.

Mr. Syama Charan Mitter appearing for the respondent has invited us to follow this decision and a decision of the Patna High Court based upon it in the case of Inderdeo Prasad Rai v. Deonarayan Mahton*. He has contended that the decision in Debi Dial's case (supra) is no longer good law in view of the fundamental change effected in the Code of 1908 by the division of its provisions into the body of the Code proper and the rules in the first schedule. The body of the Code, he says, creates jurisdiction and the rules lay down the mode of its exercise, and the sixth paragraph of the old s. 225, being now transferred to the first schedule, has become merely procedural. He has further contended that the irregularity that had been originally committed was cured and the execution proceedings were regularised from their inception when the District Judge of ‘24-Parganâs transferred the decree to the First Subordinate Judge's Court for execution.

Tek Chand, J. did not expressly base his decision upon any distinction between the Dody of the Code, and the rules in the first schedule, and indeed Meredith, J., by whom the leading judgment in the Patna case was delivered, went so far as to say that O. XXI, r. 5, no matter where it stood, would be merely a rule prescribing a particular mode of procedure. But the contention of the learned advocate for the respondent has to be dealt with.

Section 121 of the Code provides that—

The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this part.

The question of the relation between the body of the Code and the rules in the first schedule came up for consideration in the case of Mani Mohan Mandal v. Ramtaran Mandal. In that case, Sir Lawrence Jenkins, C.J, who took a prominent part in the framing of the Code of 1908, described the relation between the two in these words:—

The body of the Code is fundamental and is unalterable except by the legislature: the rules are concerned with details and machinery and can be more readily altered. Thus it will be found that the body of the Code creates jurisdication while the rules indicate the mode in which it is to be exercised. It follows that the body of the Code is expressed in more general terms, but it has to be read in conjunction with the more particular provisions of the rules.

The majority of the learned Judges who sat on the Full Bench in the case of Ghuznavi v. Allahabad Bank, Ld. referred with approval to these observations. As we understand them, these observations mean that, in order to ascertain what the jurisdiction of the court in a particular matter is, you have to look not merely to the body of the Code but also to the rules in the first schedule, which may have set limits to the jurisdiction apparently created in wide and general terms by the body of the Code. Simply because the provision which is O. XXI, r. 5 has been placed in the first schedule, it does not follow that it cannot touch the jurisdiction of the Court.

The reasoning employed by Tek Chand, J. for arriving at it conclusion in Bhagwan Singh's case (supra) may briefly be put in this way. Section 38 provides that a decree may be executed either by the court which passed it, or by the court to which it is sent for execution. Section 39 empowers the court, which passed a decree, to send it, on the application of the decree-holder, to another court for execution if the conditions mentioned in one or other of the clauses of sub-s. (1) are satisfied. The conditions mentioned in cls. (a) and (b) were satisfied, so far as the court of the Senior Sub-Judge, Delhi, was concerned, and, therefore, that court had jurisdiction to execute the decree if it was transferred to it for execution. The proper mode of transfer was for the court of the Senior Sub-Judge, Ambala, to transmit it through the District Court of Delhi, but if that mode was not followed, there was only an irregularity in the mode of transmission.

With great respect, this line of reasoning, it appears to us to be based on the assumption that the Senior Sub-Judge, Ambala, could transfer the decree to the Senior Sub Judge, Delhi, and the District Court of Delhi was merely to function as a channel through which the decree was to pass in the course of its journey from the starting point to the destination. The decree should have taken the prescribed route lying through the office of the District Judge, but if it did not, it only reached its destination in an irregular manner.

We are unable to accede to this view of the matter. Section 39, no doubt, provides, in general terms, that, on the application of the decree-holder, the court, which passed the decree, may send it for execution to another court, when the conditions specified in the section are fulfilled, but then O. XXI, r. 5 steps in to fix the District Court as the court to which the decree shall be sent when it has to be sent to a court situate in another district. The words are mandatory and do not leave any room for the exercise of any discretion in the matter by the court which passed the decree. On receipt of the decree the District Judge may choose to execute the decree himself and may not send it to any subordinate court at all. Until the District Judge has passed an order of transfer under r. 8, no subordinate court has any jurisdiction in the matter. The concept of jurisdiction embraces not merely territorial and pecuniary jurisdiction but also the fulfilment of any condition precedent that may have been attached by a statute to the court's power to take seisin of a cause: See Nusserwomjee Pestonjee v. Meer Mgnoodeen Khan Wallud Meer Sudrooden Khan.

The case of Jang Bahadur v. Bank of Upper India Limited, in Liquidation upon which Tek Chand, J. relied proceeded upon the interpretation of the terms of s. 50 of the Code, which provides that the decree-holder may apply to the court, which passed the decree to execute the same against the legal representatives of a deceased judgment-debtor. In that case, the application for substitution had been made not to the court which passed the decree, but to the transefree court and order for substitution was passed by the latter court. Their Lordships held that the court which passed the decree had not exclusive jurisdiction, and if the court to which the execution has been transferred makes the order, that is merely an irregularity in procedure which can be waived. In our opinion, that decision cannot be invoked as an authority upon the question of interpretation of a different provision of the Code couched in different language.

The case of Inderdeo Prasad Rai v. Deonarayan Mahton* (supra) does not require independent consideration, as Meredith, J. adopted the reasoning of Tek Chand, J. in the Lahore case, with which he said he was in complete agreement. He got over the difficulty created by the decision of his own Court in the case of Kunja Behari Singh… v. Tarapada Mitra…. (supra) by saying that it must be deemed to have been overruled by the decision of the Privy Council, in Jang Bahadur's case (supra).

We respectfully, Agree with the conclusion reached by Prinsep and Ghose, JJ. in Debi Dial's case (supra) and we do not consider that the authority of that decision has been shaken in any way either by the division of the provisions of the Code into the body of the Code proper and the rules of the first schedule or by the decision of their Lordships of the Judicial Committee in Jang Bahadur's case (supra). Mr. Sen's third contention must therefore be upheld:

In the view we have taken of the matter, it is unnecessary for us to deal with the contention of the learned advocate for the respondent that the: execution proceedings must be taken to have been regularised from their inception by the subsequent order, for transfer that was made by the District Judge.

The result, therefore, is that the appeal succeeds in part. The order for attachment passed on September 28, 1945, and the attachment effected thereunder are declared to be null and void, and the execution case must, proceed on the footing that the application for execution was presented on the day on which the decree was received on transfer by the District Judge. Parties will bear their own costs of this appeal.

Das Gupta, J.:— I agree.

Appeal allowed in part.

K.B