Judgement

Appeal (No. 34 of 1927) from a decree of the Court of the Judical Commissioner of Oudh (January 6, 1925) affirming a decree of the Subordinate Judge of Hardoi.

The appeal arose out of an application made by the appellant in 1924 for a declaration that proceedings against him in execution of a mortgage decree, obtained against his father in the Subordinate Court at Lucknow, were illegal and without jurisdiction. The decree had been transferred to the Court at Hardoi for execution, and upon the death of the judgment-debtor that Court, in August, 1920, after notice to the appellant, ordered that the execution should proceed against him. He contended that under s. 50, sub-s. 1, of the Code of Civil Procedure, 1908, the order could be made only by the Court which had made the decree.

The Subordinate Judge dismissed the application on the ground that the applicant having made to the Hardoi Court several applications in the proceedings had waived the objection.

The Court of the Judicial Commissioner on appeal, was of opinion that having regard to Order xxi., r. 22 (1.) (6), the order to proceed against the representative of the deceased judgment-debtor was properly made by the Court at Hardoi. The learned judges were further of opinion that even if under s. 50 there should have been first an application to the Court at Lucknow, the omission to make it was merely an irregularity, and that the defect had been waived.

1927. Oct. 28, 31. De Gruyther K.C. and Dube for the appellant. Having regard to s. 50 of the Code of Civil Procedure the Court at Lucknow was the only Court which had jurisdiction to order that the execution should proceed against the appellant as representative of the deceased. The scheme of the Code is that all questions as to the persons against whom execution is to proceed are to be determined by the Court which has made the decree, while questions as to the mode of its satisfaction are to be dealt with by the Court executing the decree. The question who may be the representative may be one of great importance. Great inconvenience would arise if there were concurrent jurisdiction in the matter, as a decree may be transferred to more Courts than one for execution. There being no jurisdiction in the Hardoi Court to make the order, the defect could not be cured by waiver or acquiescence. [Reference was made to Seth Shapurji Nana Bhai v. Shankar Dat Dube (( 1895) I. L. R. 17 A. 431.) ; Tameshar Prasad v. Thakur Prasad (( 1903) I. L. R. 25 A. 443.) ; Sham Lal Pal v. Modhu Sudan Sircar (( 1895) I. L. R. 22 C. 558) ; distinguished in Amar Chandra Banerjee v. Guru Prosunno Mukerjee (( 1900) I. L. R. 27 C. 488.) ; Jogendra Nath Roy v. Rasik Chandra, Banerjee (( 1905) 2 Cal. L. J. 544.); and Swaminatha Ayyar v. Vaidyanatha Sastri, (( 1905)

I. L. R. 28 M. 466.)] The appellant concedes that if there was a mere irregularity it was waived.

Sir George Lowndes K.C. and Wallach for the respondents. The Court which made the decree had not exclusive jurisdiction to make the order now in question. Order xxi., r. 22 (( 1905) I. L. R. 28 M. 466.), provides that " the Court executing the decree is to issue a notice to the alleged representative. Moreover, the Court of transfer has jurisdiction generally with regard to the execution. Sect. 47 of the Code provides that all questions relating to an execution are to be determined by the Court executing the decree. The decision in Sham Lal Pal v. Modhu Sudan Sircar (3), that the making of the order by the Court of transfer is merely an irregularity in procedure, wa3 right. In Seth Shapurji Nana Bhai v. Shankar Dat Dube (1), s. 248 of the Code of 1882 (corresponding to Order XXI., r. 22) was not referred to ; further, s. 47 of the Code of 1908 is clearer than s. 244 of the Code of 1882. Moreover, it was not essential that the representative of the deceased judgment-debtor should be substituted Shao Prasad v. Hira Lal. (( 1889) I. L. R. 12 A. 440.) There was therefore at most an irregula