JUDGMENT McNair, J. - This is an application by Mussamat Chaman Ara Begum, as administratrix to the estate of Abdul Salam and as one of the assignees of the decree, passed in this suit, for a certified copy of the decree and a certificate of non-satisfaction to be transmitted to the Court of the senior Subordinate Judge, Delhi, for execution. The suit is No. 3353 of 1922. It was instituted against the Defendant firm by Shamsul Huq, who was the Receiver to the estate of Shaik Gyasuddin, for money which was due. A decree was passed in favour of the Plaintiff as such Receiver on the 26th February, 1923. On the 24th May, the Receiver applied for leave to execute the decree, and on the 3rd July, he made a further application for transmission of the decree to the Delhi Court. The decree was transmitted on the 7th August, 1923. On the 24th June, 1926, Shamsul Huq was discharged, and Mr. Hemchand was appointed Receiver in his place. On the 18th June, 1928, the Delhi Court in Suit No. 150 of 1921 directed Mr. Hemchand to sell the various decrees obtained by the previous Receiver, and on the 20th and 21st September, Mr. Hemchand carried out those directions and sold, amongst others, the decree in this suit. The present applicant's husband, and one Onkermull, and Gopaliram, and Abdul Salam were all purchasers. The sale was duly confirmed, and the Receiver assigned the decree to the purchasers. The present Petitioner on the death of her husband became entitled to an eight annas share of the money recoverable under the decree, and she has purchased another six annas from other purchasers. The only purchaser who has not joined in this application is Gopaliram, who has, however, had notice that the application is being made. 2. Various objections have been put forward on behalf of the Defendant firm with considerable ingenuity. It was contended, first of all, that this application was not an application for execution, but an application for transmission, and reliance is placed upon the Full Bench case of Chutterput Singh v. Sait Sumari Mull I. L. R. 48 Cal. 903 : s. c. 20 C. W. N. 389 (F. B.) (1916). It was contended that if this was not an application for execution, it was not an application which was properly made under Or.
903 : s. c. 20 C. W. N. 389 (F. B.) (1916). It was contended that if this was not an application for execution, it was not an application which was properly made under Or. 21, r. 16, which only provides for an application for execution, and it is said that the notice which was issued under Or. 21, r. 16 by the Master is bad. 3. The case in Chutterput Singh v. Sait Sumari Mull I. L. R. 48 Cal. 903 : s. c. 20 C. W. N. 389 (F. B.) (1916), referred to the provisions of the old CPC of 1882, and what was decided there was really a question of limitation, for it was held that an application for transmission of the decree did not act as a revivor within the meaning of sec. 183 of the Limitation Act. 4. Moreover, the Rules and Orders of this Court have been considerably altered since that date. Under Chap. 17, r. 1 applications under sec. 39 of the Code, i.e., applications, for transfer of a decree for execution, shall be made on petition verified by affidavit, and not on tabular statement as was done under the former rules. 5. For the applicant it is pointed out that he has followed the directions under the Rules and Orders in Chap. 17, that he had made his application by petition and has included in his petition everything which he is required to do under the Rules. Rule 2 of Chap. 17 further provides that an application under sec. 50 or Or. 21, r. 16 of the Code may be combined with an application under the last rule, i.e., an application under sec. 38, and where an order is made on such application, a copy of the order should be transmitted with the papers. The notes to that rule point out that sufficient facts must be stated in the Petition to show that the applicant is entitled to apply, and I am satisfied that in this case the petition does set out the history and shows that the applicant is the assignee and entitled to apply. There is not, in my opinion, the necessity of setting out all the details which are required when the application is made with a tabular statement. 6.
There is not, in my opinion, the necessity of setting out all the details which are required when the application is made with a tabular statement. 6. It is also pointed out that under the new Code and the rules this matter could have been dealt with by the Master, and in fact the application was originally made to him and was then adjourned into Court. The notice under Or. 21, r. 16 was issued by him. 7. It was further contended that an order for transmission has already been made, and that therefore there is no decree to transmit. Even if this be so--and it is so stated in the petition in opposition--yet, the transferring Court does not surrender control of execution proceedings. Moreover, the decree was assigned after transmission, and it is quite clear that the assignee must apply to this Court and not to the Delhi Court. As was pointed out in Akhoy Kumar v. Sourendra Nath 30 C. W. N. 735 at p. 737 (1926) :-- On the death of the applicant for execution it was open to the legal representatives of the deceased decree-holder to apply immediately for carrying on the proceedings in execution of the decree or to apply for fresh execution under Or. 21, r. 16 of the Code of Civil Procedure. 8. That was a case where one of two persons who had applied to the same Court for execution of their respective decrees for money against the same judgment-debtor, died before the assets were received by the Court. 9. Furthermore, in Amar Chandra v. Guru Prasanna I. L. R. 27 Cal. 488 (1900), it was held that an application by the transferee of a decree for execution after substitution of his name can be entertained only by the Court which passed the decree, and the Court to which the decree has been transferred has no jurisdiction to entertain it. It was further held that where a decree has been transferred to another Court for execution, and that Court orders the execution to proceed after substituting the name of the transferee of the decree, such an order is one passed without jurisdiction. 10. A further contention was that Mr. Hemchand on being appointed Receiver ought to have come to this Court and obtained recognition of his position. It was argued that an application should have been made under Or.
10. A further contention was that Mr. Hemchand on being appointed Receiver ought to have come to this Court and obtained recognition of his position. It was argued that an application should have been made under Or. 22, r. 10, but it is quite clear that that rule does not apply to transfers of a decree, but that the rule applicable is Or. 21, r. 16. 11. It was then suggested that there has been satisfaction of this decree, and a reference was made to a paragraph of a report of the Receiver, Shamsul Huq, in which he stated that in execution of the decree goods instead of cash had been taken and kept in deposit, information of which was supplied to the Court on the 10th October, 1923. That report was not made in this suit nor in the execution proceedings. Moreover, it has not been certified or recorded within the meaning of Or. 21, r. 2 (iii) of the Civil Procedure Code, and therefore cannot be recognised by any Court executing the decree. 12. Finally, it was contended that the present applicant had only a 14 annas share, and therefore had no right at all to execute the decree. It was contended that Or. 21, r. 15 is the only provision enabling one person to apply for execution of the whole decree, and that is only where the decree has been passed jointly. The decree was not passed jointly, it is said, because the decree was passed in favour of the Receiver. The only person who is not joined in this application is Gopaliram. It is admitted that he has had notice, and that he has refused to join, and the Defendant in his affidavit says that he has justly refused to join because he knows that the decree has been fully discharged and satisfied. If that is so, obviously he takes no further interest in the decree, and his rights need not be safeguarded. I am not satisfied that these objections are valid, and there will, therefore, be an order for execution in terms of the notice and for transmission as prayed. Order for costs in favour of the Petitioners in this application including costs of the appearance before the Master.