The transferee court does not have the jurisdiction to stay the execution of the decree as it is not the court which passed the decree.

K.K.Dutta, J.

1. This petition in revision arises out of an order staying an execution case which was filed by the present petitioner for executing a decree, which he had obtained from the Bombay City Civil Court, as against the opposite party and which decree had been transferred for execution to the court of Munsif 3rd, Gaya. The opposite party has filed a title suit, namely, title suit No. 74 of 1967 in the court of Munsif 3rd, Gaya, challenging the validity of the decree on the ground that it had been obtained by fraud and for declaration that the decree as null and void. After institution of the suit he filed, an application in that very suit for staying the execution case. As alleged by the petitioner, without issuing of any notice of this application to, the petitioner defendant the court passed an order on 17-1-1968 as follows:-

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"Stay execution proceeding as prayed. Inform."

The petitioner subsequently entgred appearance in the title suit and thereafter filed a petition on 21-11-1968, for, recalling the aforesaid order which had been passed on 17-1-1968. It was contended on behalf of the petitioner that the Court had no jurisdiction to stay the execution proceeding as such an order could only be passed by the Court which had passed the decree i. e. the Bombay City Civil Court. This contention was not accepted by the court below and it was held that the previous order passed on 17-1-1968 was not without jurisdiction and the petition filed by the petitioner for recalling that order was accordingly rejected as per order passed on 29-11-1968. The present petition is directed against this order.

2. It appears that the court below had come to the finding that it had jurisdiction to pass the order in question, on the ground that the court to which the decree had been transferred had powers under Order 21, Rule 29 of the Civil Procedure Code to pass an order staying the execution. This rule provides 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 whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."

The decree under execution in the present case was passed by the Bombay City Civil Court whereas the title suit in which the stay order was passed is pending in the court of Munsif 3rd, Gaya, that is, a court other than the court by which the decree was passed. Hence the question that arises for consideration is whether in view of the transfer of the decree to the court of the 3rd Munsif, Gaya, for execution, the transferee court can be deemed to be the court which has passed the decree, for the purpose of the application of the aforesaid Rule 29, as held by the court below. It appears that the point arose for consideration by a Division Bench of the Calcutta High Court, in the case of Saradakripa Lala V/s. Comilla Union Bank, Ltd., AIR 1934 Cal 4. In this case the decree which had been passed by a Comilla Court was transferred for execution to a Chittagong Court and the prayer for stay of execution of the decree-was rejected by the Chittagong Court. In coming to its decision the High Court referred to the provisions of Sections 37 and 42 of the Civil Procedure Code. It was held that as the decree had been transferred by the original Court that Court had ceased to have jurisdiction and hence in view of the provisions of Sec.37 of the Civil Procedure Code as to the meaning of the expression. "Court which passed a decree", the expression would include the Court to which the decree had been transferred for execution. Sec. 42 of the Civil Procedure Code which lays down that the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been, passed by itself was also relied upon for holding that the transferee court had the same power of staying the execution as the court which had pas