The executing Court has no discretion to repeatedly postpone execution of a decree in a manner that prejudices the rights of the decree-holder. The Court which passed the decree can issue a precept even after transferring the decree for execution to another Court. The executing Court is not the proper forum to question the validity of the precept, and the jurisdiction to issue the precept remains with the Court which passed the decree.

JUDGMENT

Mukerji, J. - By two indentures of mortgage, one dated the 31st March 1921 in favour of Mr. Framroz Edulji Dinshaw and two others, and another dated the 28th June 1925 in favour of Mr. Framroz Fdulji Dinshaw alone, Mr. J.C. Galstaun borrowed 30 lacs and 2 lacs of rupees respectively on hypothecation of some immovable properties. In February 1926 the mortgagees having attempted to sell the mortgaged properties without the intervention of the Court on the strength of a covenant in the deeds, Mr. Galstaun instituted a suit in the Court of the Subordinate Judge at Alipore for a declaration that the mortgagees are not entitled to exercise that power of a sale and for an injunction restraining them from doing so and obtained a temporary injunction to that effect in his favour Thereafter the mortgagees instituted two suits in the High Court of Judicature at Bombay in its Original Jurisdiction for moneys due on the said mortgages being Suits Nos. 1418 and 1420 of 1926, on the basis of the personal covenants contained in them. On the 8th October 1926 decrees were passed in these suits, in the former for Rs. 2,12,686-3-0 and in the latter for Rs. 31,24,373-5-0.

2. Early in November last the two decrees were transferred by the Court which passed them : the decree in Suit No. 1418 of 1926 to the first Court of the Subordinate Judge at Alipore, and that in Suit No. 1420 of 1926 to this Court in its Original Jurisdiction.

3. On the 10th November 1926 an application was made by the decree-holders in the first Court of the Subordinate Judge at Alipore for attachment of the moveable properties of the judgment-debtor, and the learned Judge made an order for attachment under Order 21, Rule 30, Civil P.C. fixing 6th December 1926 for return and further orders, Thereafter on the objection of the judgment-debtor he passed further orders from time to time, allowing the judgment-debtor time to pay up the decretal dues. He eventually passed an order on the 17th November 1926 deferring the issue of the writ to the 27th November 1926 and on the last-mentioned date again deferred it till the 22nd December 1926. Against these two orders the decree-holders moved this Court and obtained a Eule which is Rule No. 1188 of 1926.

4. Rule No. 1188 of 1926 was partly heard by us on the 22nd December 1926. The time granted by the Subordinate Judge having expired, the judgment-debtor applied on the 22nd December 1926 to the learned Judge for further time, and the learned Judge again granted time to the judgment-debtor till the 31st January 1927. The decree-holders moved this Court on the 4th January 1927 against this and a subsequent order passed by the learned Judge on the 23rd December 1926 in connexion with this matter, and we directed the application to be made with notice to the judgment-debtor and we also sent for the judgment-debtor's application upon which the order of the 22nd December 1926 was made. The notice having been given and the application so sent for having arrived, we heard the decree-holders' application on the 7th January 1927. This application will be dealt with along with Rule No. 1188 of 1926.

5. It has been already stated that the decree in Suit No. 1420 of 1926 was transferred to this Court in its Original Jurisdiction early in November last. Thereafter at the instance of the decree-holders in that suit, a precept u/s 46, Civil Procedure Code, was issued by the Bombay High Court on the 2nd December 1926 to the Subordinate Judge of 24-Parganas at Alipore for attachment of certain moveable properties of the judgment-debtor. It was received by the Subordinate Judge 1st Court, Alipore, on the 6th December 1926 and on that day an application was made by the decree-holders to execute the same, and the learned Judge made an order directing a writ of attachment to issue. The judgment-debtor objected to the issue of the writ but his objections were overruled. The issue of the writ, however, was deferred till the afternoon of the 13th December 1