P L D 1964 Supreme Court 471 (PLP)

(ii) that in previous execution proceedings there had been a compromise between the parties to decree by virtue of which the decree was by consent changed into a decree by specific performance ; (iii) that the application for transfer of the decree was time‑barred as the decree itself was on account of Article 183 of the Limitation Act no longer capable of execution ; and (iv) that the decree could not be transferred for execution without a certificate of non‑satisfaction. The learned Single Judge of the High Court who dealt with this application was of the opinion that in view of the pendency of execution proceedings before the Calcutta High Court on the 15th August 1947, there was no difficulty in transferring the decree for execution to another Court without deciding any of the questions raised by the present appellant. He directed, therefore, that the decree be transferred as prayed for. The concluding portion of his judgment which is reproduced below contains the argument on the basis of which the learned Single Judge directed transfer of the decree without any decision on the points raised "Having regard to the Annexures "C", "D" and "E" it appears that the matter was really pending before the Calcutta High Court immediately before the appointed day. The position being as above, there is no difficulty in only transmitting the decree to the First Court of the Subordinate Judge at Dacca. The decree is, therefore, transmitted to the Court of the First Subordinate Judge at Dacca, and the application for execution is transferred to the said First Subordinate Judge for disposal on the merits. It will be for the executing Court to examine the accounts and also to consider the point of limitation and other objections, if any, to the executability of the decree." Annexure "C" it may be explained is a copy of the order of the High Court of Calcutta dated 8th May 1947, incorporating the compromise between the parties by virtue of which that the judgment‑debtor was to grant a lease to the decree‑holder in respect of certain area of land and directing that the decree be varied accordingly. Annexure "D" is a memorandum dated 31st March 1950, from the Office of the Manager Bangla Bazar Group of Wards Estates, Dacca (the appellant's estate was under the superintendence of the Manager, Wards Estates, at that time) to the Manager, Hindustan Co‑operative Insurance Society Limited wherein it has been stated that Suit No. 1478 of 1933 is still pending in the High Court of Calcutta. The number of the suit shows that the reference was to the suit in which the decree was passed but the statement that the suit was still pending in the High Court of Calcutta is not intelligible. It will be proper to refer, before proceeding further, to the relevant provisions of the Civil Procedure Code. In accordance with section 39 (1) the Court which passed the decree can on the application of the decree‑holder send the decree for execution to another Court if any of the conditions mentioned in the section is satisfied. Under section 39 (2) the Court which passed the decree can, even suo motu, send the decree for execution to a subordinate Court. Rule 6 of Order XXI provides for the documents which are to be sent to the Court which is to execute the decree. It runs :

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6. The Court sending a decree for execution shall send‑ (a) a copy of the decree ; (b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied ; and (c) a copy of any order for the execution of the decree or, if no such order has been made, a certificate to that effect." By virtue of section 117 the provisions of the Civil Procedure Code except to the extent expressly stated in the Code apply to the High Courts as well, though the High Courts retain by virtue of section 139 the power of framing rules regulating the exercise of original civil jurisdiction. There is no rule of the original side which is inconsistent with rule 6 of Order XXI and this rule does apply to the High Court of East Pakistan. We are of the opinion that the learned Single Judge of the High Court ought to have decided the questions raised by the appellant before transferring the decree for execution to the Court of the Subordinate Judge. The questions raised were such as ought to have been decided before an order of transfer was passed. The first question raised was that the present respondent had no locus standi for putting in the application for transfer of decree. When an application is put in and an objection is raised that the application is itself incompetent on account of want of locus standi in the) applicant obviously it would be a matter to be decided by B the Court which has to entertain and pass orders on the application. It was not for the Court to which decree had been transferred to determine the question as to whether the application for transfer of a decree which had been filed before the High Court was competent. The next question raised was one of limitation. Before the High Court directed a transfer of the decree for execution it was necessary to decide whether there was a decree in existence which was capable of execution for a judicial order transferring a decree to another Court does imply that the decree is capable of execution. The third point raised was that the decree had been varied by a compromise. This point too would have to be decided by the Court transferring the decree because if the decree had in fact been varied then the decree to be transferred for execution was the amended decree and not the decree in its original form. Under Order XXI, rule 6 a copy of the decree has to be sent. The fourth point related to the certificate of non‑satisfaction of the decree. If a Court sends a decree for execution to another Court it has to state the extent to which the decree is still a decree capable of execution. Even apart from Order XXI, rule 6 it would be obvious that the nature and extent of the relief still claimable under the decree would have to be stated, but rule 6 leaves no room for any argument on this point. The mere fact that in the circumstances of this case it became difficult for the decree holder to prove the extent to which the decree had been satisfied did not mean that the decree should be transferred without such a certificate. It has been contended on behalf of the respondent that the questions raised by the appellant are such as can be dealt with by the executing Court for they relate to the execution discharge or satisfaction of a decree and are within the scope of section 47, C. P. C. It is urged that under section 42, C. P. C. the powers of a Court to which the decree is sent for execution arc the same as those of the Court which passed the decree. The question as to whether there was a locus standi for putting in an application for transfer of a decree was not one which could be determined by the transferee Court at all. It related to the competence of an application in the High Court. The question as to whether the decree could be sent at all unless it was accompanied by a certificate of non‑satisfaction was also a question which could be decided only by the High Court. Similar consideration apply to the question as to what a decree was in existence for the High Court had to decide what decree was to be sent for execution. The question as to whether execution had become time‑barred is one which an executing Court can determine, but this does no mean that the Court which sends the decree should not decide it if it is raised for as already observed the sending of decree does involve a decision that a decree capable of execution exists. Of course if a Court does actually sends the decree for execution without applying its mind to the question of limitation the plea would not become barred and may be taken before the executing Court. This appeal is allowed. The order of the High Court is set aside and the case is remanded to the High Court for a decision of the questions raised. K. B. A. Appeal accepted.