The main legal point established in the judgment is the interpretation of the provisions of the Civil Procedure Code, specifically Section 37 and Section 150, to determine the jurisdiction for execution of a mortgage decree.

JUDGMENT

B.K. Mukherjea, J. - This appeal is on behalf of the decree-holder and it is directed against an appellate order of the Subordinate Judge, third Court, Mymensingh, dated 5th August 1939, reversing the order of the Munsif, First Court, Kishoreganj, made in a proceeding u/s 47, Civil P.C. The material facts lie within a narrow compass and are not disputed. The appellant obtained a mortgage decree against the defendants-respondents in the Court of the First Munsif at Kishoreganj and the decree was made final on 7th December 1932. The first application for execution was made on 3rd December 1935 and it was filed in the Court of the Second Munsif at Kishoreganj and not in that of the First Munsif which passed the decree, the ground alleged being that subsequent to the passing of the decree the particular area where the mortgaged property was situated was assigned to the Munsif, Second Court, u/s 13(2), Bengal Agra and Assam Civil Courts Act. This application was dismissed for default on 10th December 1935. The present application for execution was presented in the court of the First Munsif on 15th November 1938.

2. The whole controversy centres round the point as to whether the first application for execution was an application made to the proper Court within the meaning of Article 182, Clause (5), Limitation Act. If it was, limitation would run from 10th December 1935 when the final order was made in the proceeding, and the present application would be in time. If not, the application must be held to be time-barred. The trial Court decided this point in favour of the decree-holder. The lower appellate Court has decided against him. The sole point for our consideration in this appeal is whether the view taken by the lower appellate Court is right. To determine this point it is necessary first of all to turn to the relevant provisions of the Code of Civil Procedure. u/s 38 of the Code, a decree can be executed by the Court which passed the decree or by the Court to which it is sent for execution. Section 37 defines the expression 'Court which passed a decree', and Clause (b) of that section lays down that the expression shall be deemed to include "where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit."

3. The only other relevant provision is contained in Section 150, Civil P.C., which runs as follows:

Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.

4. The decree holder can succeed in saving limitation in the present case, if he can make out either of two alternatives, namely that the Court of the Second Munsif of Kishoreganj was a Court which passed the decree within the meaning of Section 37(b), Civil P.C., or that the business of the Court of the First Munsif was transferred to that of the Second Munsif as contemplated by Section 150 of the Code. So far as the first, alternative is concerned, it is conceded by Mr. Roy who appears for the decree-holder that the Court of the First Munsif of Kishoreganj not only had not ceased to exist, but it was quite competent even now to entertain an application for execution of the decree which was passed by it. He contends, however, that as it could not sell the property which was no longer within its territorial jurisdiction, it must be deemed to have ceased to have jurisdiction to execute the decree within the meaning of Section 37(b), Civil P.C., and as a mortgage suit in respect of the same property would now have to be instituted in the Court of the Second Munsif, that Court must be rega