The only question in this appeal against the judgment of Panchapakesa Ayyar, J., in C.M.S.A. No.47 of 1947 is whether an execution petition filed by the respondent is within time. Both the learned District Munsif of Nellore as well as the District Judge of Nellore held that the application was barred. In the above C.M.S.A.No.47 of 1947 Panchapakesa Ayyar, J., held that it was in time. Hence this appeal by the judgment-debtor.

Execution is sought of the decree in O.S. No.294 of 1931 on the file of the District Munsif of Nellore. The decree was passed on 30th October, 1931. In E.A. No.597 of 1936, the District Munsif’s Court transmitted the decree to the Court of the Subordinate Judge for execution on 21st April, 1936. Part of decree amount was paid to the decree-holder as a result of proceedings taken in O.S. No.22 of 1934 on the file of the Sub-Court, and on 10th April, 1939, a certificate of part satisfaction was sent to the District Munsif’s Court. The decree, however, was not sent back. Hence, on 6th April, 1942, the decree-holder made an application to the Sub-Court for re-transmission of the decree to the District Munsif’s Court. This petition, however, was rejected on 22nd June, 1942, as incompetent. Eventually, by September, 1944, the decree appears to have been received back in the District Munsif’s Court. On 20th October, 1943, an execution petition was filed in the Court of the District Munsif, Nellore, which was numbered as E.P. No.135 of 1945. It is this petition which is said to be barred by time.

It is clear that this petition would be within time if the application, dated 6th April, 1942, made by the decree-holders to the Sub-Court for re-transmission of the decree of the District Munsif’s Court was a proper application, because that application was disposed of by an order, dated 22nd June, 1942 and that would furnish a fresh starting point. The contention on behalf of the judgment-debtor was, and is before us, that that application was not valid, because the Sub-Court was functus officio immediately the part satisfaction certificate was sent by it to the District Munsif’s Court, and thereafter it had no jurisdiction to entertain the application. Another objection to the validity of the application was that it was not accompanied by the vakalat of the advocate who appeared for the decree-holder.

The first objection is sought to be supported by a reference to the observations of the Supreme Court in a recent judgment in Mohanlal Goenka v. Benoy Krishna Mukherjee1. In that case, the decree of a High Court was transmitted to a mofussil Court for execution. In February, 1932, a document purporting to be a certificate of non-satisfaction was sent by the executing Court to the High Court, but the decree itself was not’ re-transmitted. Despite this fact, the decree-holder made a second application for execution in November, 1932, to the transferee Court. Notice was served upon the judgment-debtor. But he preferred no objection that the Court had no jurisdiction to execute the decree. In dealing with this conduct of the judgment-debtor, the learned Ghulam Hasan, J., who delivered the judgment of the Court, observed that the judgment-debtor could have pointed out that the tranferee Court was functus officio after sending the certificate under section 41 (Civil Procedure Code) and had no further jurisdiction to sell the property in execution; but no such objection had been raised. It is obvious that this observation cannot be of any assistance to the appellant in this case. In the present case, the decree-holder in his application of April, 1942, did not seek to execute the decree in the Sub-Court. All that he wanted was that the decree may be re-transmitted to the District Munsif’s Court for further execution. We do not think that the above observation of the Supreme Court is authority for the position that the transferee Court in fundus officio and ceased to have jurisdiction even to entertain an applicati