JUDGMENT

1. This is an execution of decree appeal on behalf of the judgment-debtors against whom the respondent at present holds a decree, which he obtained under Order 34, Rule 6, Civil P.C., This decree was passed some time in November 1925. The judgment-debtors have some property situated in the district of Tripper a Bengal. In 1933 the decree-holder applied in the Court of the Civil Judge, then Subordinate Judge of Unao, for transfer of his decree to the Court of the Subordinate Judge of Comilla in Bengal for execution. The decree was therefore sent for execution to that Court and the execution there of is pending there. In October 1936 the judgment-debtors made an application under Section 4, U.P. Encumbered Estates Act before the Collector of Unao requesting that the provisions of that Act be applied to them. The Collector of Unao forwarded the application to the Special Judge of Unao and proceedings before the learned Special Judge are still pending. On 24th July 1937, the judgment-debtors applied in the Court of the Civil Judge at Unao, i.e., the Court which passed the decree in favour of the respondent decree-holder praying that by virtue of Section 7, U.P. Encumbered Estates Act the execution proceedings going on in the Court of the First Subordinate Judge at Comilla, District Trippera, he ordered to be stayed. The Court on 27th July 1937 passed an ex parte order staying execution proceedings. On 3rd August 1937, the decree-holder applied for setting aside the ex parte order of stay on the ground that the Court of the First Subordinate Judge of Comilla was situated outside the United Provinces and the execution proceedings pending in that Court could not be stayed under the provisions of Section 7, U.P. Encumbered Estates Act. This application of the decree-holder was allowed and the order of stay passed on 27th July 1937 was vacated. The judgment-debtors have come up in appeal to this Court against the order of the learned Civil Judge of Unao dated 3rd September 1937, canceling the order of stay of execution proceedings.

2. The learned Counsel for the appellants has argued that the provisions of Section 7, U.P. Encumbered Estates Act are fully applicable and they are entitled to obtain an order staying further execution proceedings in respect of the decree in favour of the decree-holder on two grounds, namely: (1) that the execution proceedings originating in the decree-holder's application for trans. fer of the decree for execution to the Court in Bengal are still pending in the Unao Court which passed the decree and will terminate when the Bengal Court certifies to that Court the result of the execution under Section 41, Civil P.C. These proceedings must be stayed under the first part of Section 7(1)(a) resulting in the withdrawal of the decree from the Court in Bengal by the execution Court at Unao in the United Provinces. (2) That the order passed by the Unao Court transferring the decree for execution to the Bengal Court was an execution process within the meaning of that expression in the latter part of Section 7(1)(a), U.P. Encumbered Estates Act, and as such it became null and void and the decree must be recalled from the Court to which it was sent for execution. In support of his argument the learned Counsel for the appellant has contended that the Court does not become functus officio between the time when it transfers the decree for execution to another Court and the date of certificate under Section 41, Civil P.C., and that Court still retains jurisdiction over execution proceedings. He has placed reliance for this contention upon Jang Bahadur v. Bank of Upper India Ltd. (1928) 15 AIR PC 162, Seth Shapurji Nana Bhai v. Shankar Dat (1895) 17 All 431, Srihary Mundul v. Murari Chowdhry (1886) 13 Cal 257, Swaminatha Ayyar v. Vaidyanatha Sastri (1905) 28 Mad 466 and Balkrishna v. Debi Prasad (1930) 17 AIR Oudh 305. He has further referred to Lang v. Jaswant Lal (1926) 13 AIR Bom 271 in support of his contentio