The jurisdiction of a transferee Court to execute a decree transferred to it for execution from another Court is determined by the provisions of Section 39 and Rules 5 and 8 of Order 21 of the Code of Civil Procedure, 1908.

Untwalia, J.

1. This is a miscellaneous first appeal by the judgment debtor from the order dated the 1st of October, 1959, of the learned Subordinate Judge of Biharshariff, dismissing Miscellaneous Case No. 41 of 1959 under Sec. 47 of the Code of Civil Procedure, hereinafter to be referred to as the Code, in Execution Case No. 34 of 1958. Two objections were taken in the Court below (1) that the execution was bad for the reason that the decree had not been transferred to that Court by the Court which had passed it, in accordance with Jaw; and (ii) that Surendra Prasad Bhadani, one of the decree-holders executing the decree, was a minor but had applied for execution as a major. Both the objections have been overruled by the Court below, and in this appeal the second objection has not been pressed at all for our consideration. The only point urged by learned Counsel for the appellant is that the Subordinate Judges Court at Biharshariff had no jurisdiction to execute the decree as the Court of 1st Subordinate Judge at Gaya, which had passed the decree had ordered it to be transferred to the Court of Munsif at Biharshariff for execution. Learned Counsel for the decree-holders respondents 1 to 3, hereinafter referred to as the respondents, has not only combated the argument put forward an behalf of the appellant but also supported the decision of the Court of the lower Court on the ground of waiver and constructive res judicata.

2. One Jhari Ram Bhadani since deceased, father of respondents 1 and 2 and husband of respondent 3, obtained a money decree on the 27th of February, 1948, on the basis of a handnote for a sum of Rs. 63,500.00 with interest and costs against the appellant and his brother, respondent No. 4, in the Court of the 1st Subordinate Judge at Gaya. On the 13th of February, 1957, the respondents filed an application to the Gaya Court for transfer of the decree "to the Court at Bihar in the district of Patna", stating that, after obtaining the decree on 27-2-48, it was executed in the Court which had passed it in Execution Case No. 157 of 1948; various properties in the district of Gaya were proceeded against but

"on some objections being raised by the creatures of the judgment-debtor they were released with the result that no satisfaction of the decree has yet been made and the execution application has been dismissed on 9-1-57";and that

"the defendants have got some landed property in the district of Patna, within the jurisdiction of the Bihar Sub-division and as such to enable the plaintiff to realise the decretal amount it is meet and proper that the decree be transferred to Bihar Sharif, District Patna, under whose jurisdiction the defendants have their ancestral home and have landed properties."

It is to be noticed that the respondents had merely asked for transfer of the decree to the Court at Biharshariff in the district of Patna, but the order which was recorded by the Gaya Court on 16-2-57 runs thus : "Plaintiff files a petition along with C. C. of decree and suit register and prays to transfer the decree to the Court of Munsiff at "Bihar for execution"....... Call for the record of money suit and put up on 21-2-57 for further order along with the seristedars report."

Ii may well be that the Court of the Subordinate Judge having been created and established at Biharshariff not long before 16-2-57, perhaps, it was not known to the Subordinate Judge of Gaya that the proper Court to execute this decree of such a high amount was that of the Subordinate Judge at Biharshariff and not of the Munsif. Be that as it may, the order, which was ultimately made on 13-3-57 by the transmitting Gaya Court, was "Let the decree be transferred to Munsiff Bihar and grant dasti cover as prayed for."

In transmitting the decree, however, the procedure presecribed by Order 21, Rules 5 and 6 of the Code was followed. Forms 3 and 4 of appendix E appended to the Code were filled up, and, although in the first paragraph by fillin