Non-compliance with Order XXI R.5 is only an irregularity and does not deprive the court of its inherent jurisdiction to execute the decree.

1. This appeal arises in execution, the appellant being the 2nd defendant in O. S. No. 245 of 1951 on the file of the District Court of Trivandrum. The decree was passed on 20121952 and the present E. P. (E. P. No. 61 of 1965) was filed by the decree holder on 10 31965. The appellant contended inter alia before the executing Court that the execution petition was barred by limitation in as much as it had been filed more than 12 years after the date of the decree. The lower Court held that the execution is not barred and it is the correctness of this decision that is canvassed in the appeal.

2. The plea of limitation was rejected by the lower Court on grounds which appear to us are not sustainable. But the conclusion appears to us to be correct though for different reasons. The records indicate that E. P. No. 176 of 1963 was filed in the Sub Court of Alleppey within 12 years of the date of the decree. The prayer in that execution petition was for proclaiming and selling the properties belonging to the appellant and situate within the jurisdiction of that Court. During the pendency of that E. P. the decree holder filed C. M. P. No. 841 of 1963 for appointment of a receiver for one of the attached items. That petition was dismissed on 18 31963, the Court directing the decree-holder to proceed against the properties of defendants 1 and 3 in the original instance and then only against the properties of the appellant. The decree-holder filed another petition for review of this order as C. M. P. No. 26a8 of 1963. The Court then passed an order in E, P. No. 176 of 1963 that the said E. P. will be taken up after the disposal of C. M. P. No. 2688 of 1963. Although thereafter the. C. M. P. was dismissed, the E. P. was kept on file and it is still pending. The present E. P. has therefore to be taken as a continuation of that E. P. and in that view is within time. The objection regarding limitation is therefore overruled.

3. The appellant has filed C. M. P. No. 13956/1970 praying for allowing him to raise an additional ground that the lower Court had no jurisdiction to execute the decree in as much as the Trivandrum District Court transferred the decree for execution to the Court of Subordinate Judge of Alleppey contravening the provisions of Order XXI R.5 and therefore the lower Court had no jurisdiction to execute the decree. This ground had not been taken in the memorandum of appeal nor was it raised before the lower Court at any time. On behalf of the respondent-decree-holder it is contended that this point having not been raised earlier must be taken as waived and that the transmission of the decree by the District Court of Trivandrum to the Sub Court of Alleppey was, if at all, only an irregularity which does not go to the root of the matter and there is no inherent lack of jurisdiction in the Sub. Court.

4. Order XXI R.5 runs as follows:

"Where the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. Bat, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed."

The contention of the learned counsel for the appellant is that the District Court of Trivandrum should have transferred the decree only to the District Court of Alleppey and not to the the Sub-Court, Alleppy, as it has done, and the transfer is therefore illegal and without jurisdiction. According to him, the objection regarding the non-compliance with the provisions of Order XXI R.5 C. P. C. went to the root of the matter and there was a fundamental defect in the exercise of jurisdiction by the Sub Court of Alleppey. His contention is that this defect cannot be waived and the execution before the Sub Court was entirely without jurisdiction. The question whether non-compliance w