Das, J.This application is directed against the order of the learned Munsif of Muzaffarpur, dated the 29th June 1925. The circumstances are these: On the 18th May 1925 the petitioners obtained a decree for Rs. 144-5-9 against Chhattoo Lal in the Court of Small Causes in Calcutta. On the application of the petitioners, the Small Cause Court, Calcutta, sent the decree for execution to the Muzaffarpur Court under the provisions of Section 39 of the Code of Civil Procedure. The petitioners applied for execution in accordance with law; but ultimately, on the 21st May 1924, his execution case was dismissed for default and the learned Munsif in seisin of the matter certified to the Calcutta Small Cause Court the circumstances attending the failure to execute the decree. The order of the learned Munsif is not before us, but we must presume that he acted u/s 41 of the Code of Civil Procedure. Thereafter certain properties belonging to the judgment-debtors were sold at the instance of Mohan Prosad Sahu who had obtained a decree as against the judgment-debtors and there being assets of the judgment-debtors in the hands of the Muzaffarpur Court the petitioners applied, on the 20th April 1925, for attachment of the surplus saleproceeds which amounted to Rupees 3,436-15-3. On the 27th April 1925 Rs. 1,432-15-9, out of the surplus saleproceeds in the hands of the Muzaffarpur Court, was attached at the instance of the petitioners, the Court at the same time directing that the petitioners should obtain another order from the Calcutta Small Cause Court transferring the decree for execution to that Court. The order of the Calcutta Small Cause Court transferring the decree for execution to the Muzaffarpur Court was received on the 30th April 1925. Thereafter other decree-holders who had obtained decrees as against the judgment-debtors came in and the surplus sale-proceeds were attached at the instance first of Mohan Prosad, then of Bihari Lal and lastly of Sham Narain Singh. On the 24th June 1925 the petitioners applied for liberty to withdraw Rs. 1,432-15-9 out of the surplus sale-proceeds. They contended the at their attachment was first in order of time and that they were entitled to withdraw the sum attached without reference to the rights of the other attaching creditors. Similar applications were presented on behalf of the other attaching creditors and they applied for rateable distribution of the assets. The learned Munsif took the view that Section 73 of the CPC did not apply to the facts of the case and that the distribution of the assets could only be made in order of respective attachments. That being the position, the petitioners contended that their attachment being first in point of time, they were clearly entitled to withdraw the sum of Rs. 1,432-15-9 from the Court. In dealing with that application the learned Munsif came to the conclusion that the attachment at the instance of the petitioners was wholly irregular inasmuch as the Muzaffarpur Court was no longer in seisin of the execution case and it is the propriety of this order which is the subject-matter of the application before us.

2. I am of opinion that the view taken by the learned Munsif is correct and that this application must be dismissed. I entirely agree that the Court executing a decree sent to it has the same powers in executing such decree as if it had been passed by itself; but the point is whether: on the 27th April 1925, the date of the order of attachment of Rs. 1,432-15-9, the Muzaffarpur Court had any jurisdiction over the matter. It will be remembered that on the 21st May the Muzaffarpur Court had not only dismissed the execution case for a default but acted under the provision of Section 41 of the Code of Civil Procedure. Various cases have been cited before us by Mr. Khursaid Hussain but those cases decide that the mere striking off of an application for execution does not terminate the jurisdiction of the Court to which the decree is sent for execution to execute the decree; but at the same time those cases recognize that the jurisdiction ceases as soon as the Court takes action u/s 41 of the Civil P.C. and certifies to the Court which passed the decree the circumstances attending the failure on the part of the transferee Court to execute the decree. In the Full Bench case of J.G. Bagram v. J.P. Wise 1 B.L.R. 91 the question was whether or not a Court to which a decree passed by another Court has been transmitted under the provisions of Section 286 of Act VIII of 1859 was competent of its own authority to entertain a fresh application for execution after the first application had been struck off by itself for default. It will be noticed that in the Code of 1859 there was no provision similar to the one contained in Section 223 of the Code of 1882 or Section 41 of the present Code. In dealing with this point Mr. Justice Mitter said as follows:

It will be further observed that the law does not contain any express provision as to how and when the execution records are to be re-transmitted to the Court by which the decree was passed. I do not mean to say that such a thing cannot be done at all, but all that I mean to say is that it can be done only when an order to that effect has been received from the said Court, or from some other Court exercising appellate jurisdiction over the matter.

3. It was clearly recognized by Mr. Justice Mitter in the Full Bench case to which I have referred that the jurisdiction to execute a decree by a Court to which the decree is sent for execution ceases when an order is passed by that Court to the effect that it is unable to execute the decree. In delivering the judgment of the Full Bench, Peacock, C.J., said as follows:

The order for striking off the application for execution of the decree did not strike the copy of the decree off the records of the Court to which it was sent for execution; and so long as it remains there, the Court to which it was sent may deal with it, and any application for execution of it, as if it was a judgment of that Court.

4. But in this case the decree was no longer in the record of the Muzaffarpur Court on the 27th April 1925. This was the view which, I think, was taken by Mookerjee, J., in Manorath Das v. Ambika Kant Bose [1909] 13 C.W.N. 533. That learned Judge said that the Court to which a decree is transferred for execution retains its jurisdiction to execute the decree until the execution had been withdrawn from it or until it had fully executed the decree and had certified the fact to the Court which sent the decree or had executed it so far as that Court was able to do within its jurisdiction and certified that fact to the Court which sent the decree, In my opinion Section 41 of the Code makes it quite clear that the Court to which a decree is sent for execution has no jurisdiction to deal with execution case after it takes action u/s 41 of the Code.

5. I would dismiss this application with costs. Hearing fee: two gold mohurs.

Ross, J.

6. I agree.