The transferee execution court has no jurisdiction to grant an absolute stay of execution of a decree transferred to it for execution.

ORDER :- Opposite party No. 1 obtained an ex parte decree against the petitioners and their brother (opposite party No. 2) for Rs. 890/- in the Court of the 6th Munsif, Alipore, Calcutta, on 25-4-67. The decree was transferred for execution to the Court of the Munsif of Balasore. Execution Case No. 9 of 1968 was levied by the decree-holder in the Court of the Munsif, Balasore. The petitioners and opposite party No. 2 filed O. S. No. 121 of 1968 in the court of the Munsif, Balasore, to set aside the ex parte decree on various grounds including fraud, nonservice of notice etc. In the execution case the petitioners filed an application under Order 21, Rule 29 and Section 151, C.P.C. before the Munsif, Balasore, for staying that very execution case. The learned Munsif rejected the application and refused to grant stay, on 27-11-68. It is against this order the Civil Revision has been filed.

2. Mr. Pal for the petitioners urges that the learned Munsif exercised his jurisdiction illegally in refusing stay, which the petitioners were entitled to get not only under Order 21, Rule 29, but also under Section 151, C.P.C.

Order 21, Rule 29, runs thus :-

"Where a suit is pending in any Court, against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."

There is no dispute that a suit is pending in the Court of the Munsif, Balasore, for setting aside the ex parte decree in favour of opposite party No. 1 passed by the Sixth Munsif, Alipore. Order 21, Rule 29, however, insists that the decree-holder must have a decree in his favour of the very court in which the subsequent suit is pending. As the decree is of the Alipore Court and the suit is pending in Balasore Court, Order 21, Rule 29, in terms, does not apply.

3. To get over this difficulty, reliance is placed on Section 37(b), C.P.C. to say that the transferee execution court must be deemed to have passed the decree which was, in fact, passed by the transferor court, Section 37(b) is as follows :-

"37. The expression "the Court which passed a decree" or words to that effect, shall, in relation to the execution of decree, unless there is anything repugnant in the subject or context, be deemed to include -

* * *

(b) 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 execution of the decree, would have jurisdiction to try such a suit."

4. A bare scrutiny of the sub-section would show that it is hedged in with certain limitations. In this case, the court of first instance, i.e., the Alipore Court, has not ceased to exist. Neither it has ceased to have jurisdiction to execute the decree. So, either of the two conditions does not apply. Consequently, the Munsif's Court, Balasore, in which the application was filed for execution of the decree, cannot be taken to be a court which passed the decree within the meaning of Section 37(b).

5. There was some conflict of authority as to whether the transferor court ceases to have jurisdiction to execute the decree, after the decree is transferred. The concensus of judicial opinion, however, is that the transferor court does not cease to have such jurisdiction. The transferor court can withdraw the execution by recalling the decree.

It may pass an order for simultaneous execution or may make the order for ratable distribution. It would also have jurisdiction to decide an objection to limitation. In case of assignment of the decree after transfer the assignee is to apply for execution to the original court. If the judgment-debtor dies after the decree has been transferred for execution, an application for proceeding against the legal representatives of the deceased is to be made to the transferor court and not to the tr