B.K. Mullick, J.

1. On the 28th April 1910 the appellant obtained a decree in the Court of the Subordinate Judge of Dacca for a certain sum of money. It is not necessary to go into the history of the previous executions and we are concerned only with an application made by the decree-holder to the Subordinate Judge on the 21st April 1922. It seems that the application, was duly registered and notice was issued under order 21 rule 22 C. P. C. upon the judgment debtor to show cause why the execution should not proceed, a period of more than one year having elapsed since the last execution. On the 25th April the decree holder filed a petition requesting that the decree and a certificate of non-satisfaction should be sent to the District Judge of Manbhum. On the 29th April the certificate was duly despatched to the Court of the Subordinate Judge of Manbhum without any adjudication on the question of limitation. The Subordinate Judge of Dacca was doubtful whether he was competent to keep the execution proceeding pending on his file, but after hearing the decree holder he adjourned the case till the 29th July 1922. It appears that the certificate reached the Subordinate Judge of Manbhum either on the 6th or on the 8th May 1922, and we find an order dated the 8th May 1922 by the Subordinate Judge of Dhanbad who was the Subordinate Judge of Manbhum with the necessary territorial jurisdiction to the following effect: "Decree-holder states as ordered, that the execution Case is pending at Dacca. Register and issue notice under Order XXI rule 22 fixing 25th May for return." On the 6th June 1922 the judgment debtor filed an objection on the ground that the decree was barred by limitation, more than 12 years having elapsed since the decree was made. On the 31st July 1922 the Subordinate Judge made an order accepting the objection of the judgment debtor and dismissing the application for execution on the ground that it was barred under S. 48 C. P. C.

2. The present appeal is preferred against that order.

Now the question is what was the nature of the application before the Subordinate Judge of Dacca. Was it merely an application for the transfer of the decree or an application for the execution of the decree If it was merely an application for the transfer of the decree, then it was necessary for the decree-holder to file an application for the execution of the decree in the Court of the Subordinate Judge of Manbhum. A distinction was drawn between an application for mere transfer and an application for the execution of a decree in Suja Hossein v. Monohur Das [1895] 22 Cal. 921 and Nilmony Singh Deo v. Biressur Banerjee [1889] 16 Cal. 744, and there is really no difficulty as to the law. Now the application in question here is not before us and we can only draw inferences from the proceedings of the subordinate Judge himself: It appears that he registered the application under Order 21 rule 11 C. P. C. and issued a notice under Order 21 rule 22 after doing so. We must presume therefore that the subordinate Judge was acting according to law and that the application was in form and in substance an application for the execution of the decree, and so it has been held to be by the learned Subordinate Judge of Dhanbad also. Only that officer was under he impression that notwithstanding the application in the Court of the Subordinate Judge of Dacca it was necessary for the decree holder after the transfer of the decree to make another application in the Court at Dhanbad. In my opinion there is no warrant in law for this view. Order 21 rule 6 read with S. 39 C. P. C. makes it quite clear that where the re has been no application for the execution of the decree in the Court which passed the decree, the decree-holder is bound to make an application for execution in the Court to which the decree has been transferred; but I an find nothing in the law which compells the decree holder to make a second application for the execution of the decree in the Court to which the decree has been transferred if he has already made an application in the Court which passed the decree. It is to be noted here that the Subordinate Judge of Dacca, although he complied with the law in issuing a certificate of non-satisfaction as required by S. 39 omitted either to order the execution of the decree or to give a certificate that no order had been made for the same. The omission was wrong, but it did not give rise to any obligation upon the decree holder to file a fresh application for execution in the Court of the Subordinate Judge of Dhanbad. If then it was not necessary for the decree holder to file any such application the Subordinate Judge should, upon an application for the arrest of the judgment debtor and the attachment of his properties, have proceeded to execute the decree and the dismissal of the case was in my opinion wrong.

3. There was some argument before us as to whether this was an application for the continuation of the proceedings which had already been instituted in the Court of the Subordinate Judge of Dacca and we were asked to compare the reliefs claimed before the Subordinate Judge of Dhanbad with the reliefs claimed before the Subordinate Judge of Dacca. In the absence of the application before the Subordinate Judge of Dacca we are not able to make this comparison, nor is it necessary to do so in the view which I take of the matter.

The appeal will therefore be decreed with costs.

Foster, J.

4. I agree.