The transferee Court does not have the power to stay the execution of the decree under Rule 29 of Order 21, C. P. C.

( 1 ) THE petitioner- plaintiff has presented this petition under S. 115 of the Code of Civil procedure against the order dated 28th of April 1958, passed the Munsiff-Magistrate of Raichur in Case No. 11/2 of 1958 on his file.

( 2 ) THE facts leading up to this petition may shortly he stated as follows:

( 3 ) THE respondent - defendant obtained a money decree against he petitioner-of on 10th July 1957 in O. S. No. 237 of 1956 in the Court of the District Munsiff of Kavali of Andhra Pradesh. Since the petitioner - plaintiff resided within the jurisdiction of the Raichur Court , the decree-holder got the decree transferred to Raichur Court and started execution proceedings by a petition dated 11th April 1958. The petitioner-plaintiff than on 12. 4. 1958, filed a suit No. 11/2 of 1958 in the Court of the Munsif-Magistrate of Raichur for a declaration that the ex-parte decree obtained by the respondent -defendant against him was null and void and not execution of the decree until the decision of his suit pending in that Court. Though the plaintiff -petitioner did not specifically mention in the said persons the provisions of law under which it was made, it was however made clear during the course of arguments that it had been filed under Rule 29 of order XXI of the code of Civil Procedure. The respondent- decree-holder objected to the stay of execution and contended inter alia that the raichur Court was not competent to stay the execution of the decree under Rule 29 Order XXI c. P. C. The learned Munsiff-Magistrate of Raichur upheld the objections of the decree-holder and refused to stay the execution of the decree , dismissing the application. It is against this order that the present revision petition has been preferred.

( 4 ) THE respondent remained absent and therefore I requested Mr. Kanakasabapathy to assist the court and I amount thankful to him for rendering such assistance as he could in the matter.

( 5 ) ON the above facts, the main question which falls to be considered in this petition is whether the transferee Court has jurisdiction under Rule 29 of Order XXI C. P. C. to stay the execute of the decree transferred to it when the judgment-debtor institutes a suit in the transferee Court challenging the validity of the very decree transferred for execution. Mr. Sundaraswamy who appears for the petitioner has contended that the Court below was wrong in refusing to exercise its jurisdiction by holding that it Chapter not stay the execution proceeding under the provisions of rule 29 of Order XXI C. P. C.

( 6 ) RULE 29 of Order XXI C. P. C. is as follows:

"where a suit is pending in any Court against the holder of a decree of such Court , on the part of the person against whose the decree was passed, the Court stay on such terms as to security or otherwise as it thinks file stay execution of the decree until the pending suit has been decided".

The important words in this rule are "such Court ". If we read the rule, it is plain that the words "such Courts" must mean a "a transferee Court ". Mr. Sundaraswamy has conceded that the words "such Court " must mean the Court to which the decree has been transferred for execution. Yet he contends that thee transferee Court also must be deemed to be "such Court" is we read section 37 and 42 of the code of Civil Procedure together.

( 7 ) FIRSTLY he relies upon section 37 of the Code of Civil Procedure. Section 37 reads as follows:

"the expression 'court which passed a decree ',of words to that effect, 'shall in relation to the execution of decrees, unless there is anything repugnant in the subject or contest, be deemed to include x x x x x x (b) Where the Court of first instance has accessed to exist or to have jurisdiction to execute if the Court which , if the suit wherein the decree was passed was instructed at the time of making the application for the execution of the decree, would have jurisdiction to try such suit".

He next relied upon S. 42 C. P. C. which reads: "the Court e

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