Attachment without formal transfer null and void.

These are three connected petitions. C.R.P.No.318 of 1947 is a petition against the order of the Additional Subordinate Judge, Guntur, dismissing E.P.No.62 of 1944 in S.C.No.200 of 1932, on the ground that the petition to amend the E. P. by adding a prayer to transfer the decree to the original side was barred by limitation, the decree itself having been passed on 16th January, 1933, and the application for transferring the decree to the original side, E.A.No. 483 of 1946, having been made only on 16th September, 1946, long after the 12 years’ period under section 48, Civil Procedure Code had expired, and the application for amendment of the E.P., E.A.No. 517 of 1946, having been filed only on 8th October, 1946, long after the expiry of the 12 years’ period under section 48, Civil Procedure Code. C. R. P. Nos. 319 and 320 of 1947 are filed against the orders of the Subordinate Judge rejecting the prayers in those two. execution applications.

I have perused the entire records, and heard the learned counsel on both sides. Mr. Venkatarama Sastri, for the petitioner, urged that the decree in the small cause suit should not go to waste like this, and that the decree-holder, a poor ignorant country woman, should not be deprived of the fruits of her decree (more than Rs. 300) simply because a mere formality, like the transfer of the decree from the small cause side to the original side in the very same Court, where the very same Judge presided, had been omitted to be applied for within 12 years of the passing of the decree. He added that the Subordinate Judge himself, by ordering attachment of immoveable properties in E.P.No. 16 of 1944 and E.P.No. 62 of 1944, and calling for sale papers (which were actually filed in E. P. No. 62 of 1944, and even a sale notice was issued), had led the decree-holder to believe that the decree had been really transferred to the original side as per the application made by her in E.A.No. 376 of 1937, and, so this was a case where limitation ought to be overlooked, the E. P. allowed to be amended, and the transfer to the original side made, the attached immoveable properties sold, and the decree amount realised and paid to the decree-holder. I cannot agree. It is obvious that the period of limitation cannot be extended and the absence of jurisdiction to sell the immoveable properties (either in the small cause side or in the original side) overlooked, as it operates against the vested interests of the judgment-debtors (respondents 2 to 7). Though the Judge on the original side and the small cause side was the same, the Courts were different, under section 33 of the Provincial Small Cause Courts Act, and a transfer was essential to confer jurisdiction on the Court on the original side to attach and sell immoveable properties for satisfying this small cause decree. Order 38, rule 13, Civil Procedure Code and Order 21, rule 82, Civil Procedure Code prohibit the attachment and sale of immoveable properties by a small cause Court. Section 7 (a) (iii), Civil Procedure Code also shows this. The Bench ruling in Vengu Chetty v. Messrs. Valjee Kanjee and Co.1, relied on by Mr. Sastri, will not avail his client. In that ruling it was merely held that an order of transmission of a decree by the High Court to a mofussil Court for execution is only a ministerial act, and that such an order can be passed ex parte even after the death of the judgment-debtor. Nothing was said there about the transfer of a decree from the small cause side of a mofussil Court to the original side of a mofussil Court on an application made after limitation had expired under section 48, Civil Procedure Code. In the High Court, the order of transfer to a mofussil Court may be a ministerial act; but, in the mofussil it may be a quasi judicial act, and not a mere ministerial act, as the mofussil Courts have not got the elaborate staff and gazetted officers of the High Court, and the Judge himself deals with all such applications for t