The communication of the result of an execution proceeding does not constitute a non-satisfaction certificate under Section 41 of the Civil Procedure Code, and an execution proceeding filed in a court that has jurisdiction to execute the decree constitutes a step in aid of execution, even if it is dismissed as not maintainable.

G. K. MISRA, J.

( 1 ) THE decree-holder obtained a money decree in the Court of the Munsif, vizianagaram on 4-10-52. It was confirmed in appeal on 31-8-53. On 20-4-54, E. P. No. 480 of 1954 was filed in the Court of the Munsif, Vizianagram. On 28-6-54 a non-satisfaction certificate was issued by the Munsif, Vizianagram to the Munsif, jeypore, through the District Judge. On 23-9-54, E. P. No. 147 of 1954 was filed before the Munsif, Jeypore. On 17-4-58 the execution proceeding was closed on part satisfaction. This result was communicated to the Munsif, Vizianagram on 254-1958. On 17-10-60, E. P. No. 105 of 1960 was filed in the Munsifs Court, jeypore. On 11-11-60 the execution proceeding was dismissed as not maintainable. On 16-7-1963, E. P. No. 1179 of 1963 was filed in the Munsif's court, Vizianagram. That Court sent a non-satisfaction certificate to the Munsif, jeypore on 3-1-1964. The certificate was received on 8-1-64. E. P. No. 74/94 of 1964/65 was filed on 8-7-64. Two objections were raised by the judgment-debtor that the decretal dues had been completely paid and that the execution was barred by limitation. The executing Court overruled both the objections. Before the appellate Court the judgment-debtor abandoned the plea of payment. The appellate Court however, held that the execution proceeding was barred by limitation. Against the reversing order of the appellate Court this Miscellaneous appeal has been filed by the decree-holder.

( 2 ) THE following questions arise for consideration:

(1) Whether the order dated 25-4-58 communicating the result that the execution proceeding was closed on part satisfaction is a non-satisfaction certificate under Section 41, Civil P. C.

(2) Whether E. P. No. 105 of 1960 pending in the Court of the Munsif, jeypore, from 17-10-60 to 11-11-60 constitutes a step in aid of execution.

(3) Whether the failure on the part of the decree-holder to object to the dismissal of E. P. No. 105 of 1960 as not maintainable constitutes res judicata in respect of an objection that a non-satisfaction certificate was despatched by the transferee Court to the transferor Court.

(4) Whether E. P. No. 1179 of 1963 in the Vizianagaram Court was not in a proper Court as no non-satisfaction certificate had been sent by the jeypore Court to the Vizianagram Court.

( 3 ) IT is to be noted that E. P. No. 147 of 1954 in the Court of the Munsif, Jeypore was closed on 17-4-58 and this result was communicated to the Vizianagram court on 25-4-58. The question is whether mere communication or the order constitutes a non-satisfaction certificate under Section 41, Civil P. C. which runs thus:-

"the Court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution, or where the former court fails to execute the same the circumstances attending such failure".

There is some conflict of authority on this point. The matter is fully discussed in air 1961 Pat 149, Prahlad Prasad v. Thakur Prasad. Their Lordships observed that the act of sending a certificate under Section 41 is something in the nature of a judicial act and a formal order of the transferee Court to that effect would be necessary to satisfy the requirements of Section 41. Where there is no order of the transferee Court directing that a certificate should be issued under Section 41 and where it did not appear from the order sheet that any such certificate was in fact prepared and signed by the transferee Court and sent to the transferor Court, but the entry in the suit register indicated that an information was sent to the transferor Court relating to the dismissal of the execution case, there is no non-satisfaction certificate as required by law. With respect I am inclined to accept the view as laying down the correct law. The communication made on 25-4-58 cannot be construed as constituting a non-satisfaction certificate.

( 4 ) IF a non-satisfaction certificate was not despatched by the transferee Court to the trans