The transferee court does not have jurisdiction to stay the execution of a decree under Order 21, Rule 29 of the CPC, as the transferor court does not divest itself of its powers when it transfers the decree for execution.

This revision petition has been directed against an order of the learned Munsiff, Manipur, rejecting an application of the petitioner made under Or. 21, R. 29 C.P.C., on the ground that he had no jurisdiction to stay the execution of the decree under Or. 21 R. 29.

2. The facts giving rise to this revision, petition lie in a short compass and may be briefly narrated as follows :

On 10-7-1957, the opposite party Leisangthem Tombi filed the suit against Thoudam Ningol Ningthoujam Ongbi Muktarei Devi for delivery of possession in the Court of Subordinate Judge, Imphal. The suit was decreed on. 28-4-1958. On 29-4-1959, the opposite party (decree-holder) presented an application for the execution of the decree. The execution petition remained pending in the Court of Subordinate Judge upto 29-5-1963. On 30-5-1953 it was transferred to the Court of Munsiff, Manipur. On 12-6-1964, the petitioner-plaintiff filed a suit No. 100 of 1964 for setting aside the decree passed in the previous suit. Thereafter on 14-7-1964, he applied under Or. 21 R. 29 for stay of execution of the decree till the disposal of the Suit No. 100 of 1964.

3. The respondent decree-holder objected to the stay of the execution and contended inter alia that this Court was not competent to stay the execution of the decree under R. 29 Order 21 C.P.C.

4. The learned Munsiff upheld the objection of the decree-holder and refused to stay the execution of the decree, dismissing the application. It is against this order that the present revision petition has been preferred.

5. Heard the learned lawyers appearing on both sides and perused the record.

6. On the above facts, the main question which arises for consideration in this petition is whether the transferee Court has jurisdiction under Rule 29 of Order XXI C.P.C. to stay the execution of the decree transferred to it when the judgment debtor institutes a suit in the transferee Court challenging the validity of the very decree transferred for execution. The counsel for the petitioner has contended that the Court below was wrong in refusing to exercise its jurisdiction by holding that it could not stay the execution proceeding under the provisions of Rule 29 of Order XXI C.P.C.

7. Rule 29 of Order XXI C.P.C. is as follows :

"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."

The important words in this rule are "such Court". If we read the rule, it is plain that the words "such Court" must mean "a transferee Court". The lawyer for the petitioner has conceded that the words "such Court" must mean the Court to which the decree has been transferred for execution. Yet he contends that the transferor Court also must be deemed to be "such Court" if we read Sections 37 and 42 of the Code of Civil Procedure together.

8. Firstly he relies upon Section 37(b) of the Code of Civil Procedure. Section 37 reads as follows :

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

X X X X

(b) where the Court of first instance has ceased lo 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 the execution of the decree, would have jurisdiction to try such suit."

He next relied upon Section 42 C.P.C. which reads :

The Court executing a decree sent to it shall have the same powers in executing such decree is if it had been passed by itself.

X X X X"

He, therefore, contends that under Section 42, the transferee Court shall have the same powers as the transferor Court and argues that under Section 37(b) the transferor Court i.e., the Court of first instance has cease