Muhammad Azam Khan, C.J.--The present appeal with the leave of the Court has been directed against the judgment of the High Court dated 10.4.2009, through which the appeal filed by the appellant has been dismissed.
2. Brief facts giving rise to the instant appeal are that Brig. Rtd. Muhammad Aslam Khan, predecessor of respondents, was granted forest lease by the Government of Azad Jammu and Kashmir and an agreement was entered into between the parties on 23.11.1963. This agreement was revoked on 25.11.1965. The lessee served a notice for recovery of damage to the Government to the tune of Rs,5,00,00,000/- stating therein that per agreement, the logs were to be transported from this side of the cease fire line but the Government was not allowing the transportation of the same.
After that, another agreement was entered into between the parties on 4.4.1966 through which the dispute was referred to for Arbitration. Mirza Nazir Hussain, Deputy Commissioner, was appointed as Arbitrator whereas previously as per agreement dated 23.11.1963, Chief Conservator Forest was to be nominated as Arbitrator in the event of any dispute between the parties. The arbitrator, Mirza Nazir Hussain, Deputy Commissioner, announced the award on 16.11.1966, whereby Brig. Muhammad Aslam, lessee, was declared entitled to an amount of Rs,22,43,579/- and in lieu of that he was declared entitled to an extraction of 1121789 cft. of timber with 10% depreciation per year, which was to be counted from 1964. The per year depreciation on 10% formula comes to 112179 cft. and up to January 1967 it will be 336537 cft. Under this formula the lessee was allowed to extract 1458326 cft. timber on 2nd January 1967 and 1570505 cft. timber in January 1968. The award was made rule of the Court on 20.3.1976. An application for execution of decree was filed by Brig. Rtd. Muhammad Aslam Khan, which was transferred to Sub-Judge Muzaffarabad on 2.7.1978. After that in the execution proceedings, the Chief Conservator Forest took another stand that the original period of contract/agreement, had elapsed, therefore, the execution could not be ordered. This order was challenged before the High Court through a writ petition. The High Court dismissed the writ petition in limine but this Court, in an appeal, set-aside the order of the High Court dated 16.5.1983 and the case was remanded back. After remand, the case was decided by High Court on, 26.11.1983 and writ was issued in favour of lessee. This judgment was sent to Sub-Judge Muzaffarabad and execution proceedings were started once again. A "Fard-e-Sabeel" was filed on 20.3.1984. The liability was determined to the tune of 11,23,280/- cft. of the timber. The Court issued the order of attachment on 12.5.1984, directing the execution of decree against the attached compartments of the forest. An application was submitted by the appellant on 14.10.1985 that respondents were violating the directions of the Court while another application for review of order dated 2.11.1985 was filed in the Court of Sub-Judge Muzaffarabad which was dismissed on 15.1.1986. A revision petition was also filed in the High Court which was also dismissed on 6.2.1990. An appeal filed before the Supreme Court was accepted on 11.8.1990 and once again the execution proceedings restarted in the Court of Sub-Judge Muzaffarabad. The Sub-Judge Muzaffarabad, passed the attachment order of Compartments Nos, 30, 31 and 32, invoking the powers under Clause 10 of the agreement. As the initial agreement of lessee was pertaining to compartments No, 10-B part and 12- part. A request was made in the executing Court that alternate property of the Government, i,e, Compartments Nos, 30, 31 and 32 may be attached and the executing Court attached those compartments for execution of the decree. This order was challenged before the High Court and ultimately before the Supreme Court. This Court on 26.5.1994 decided the appeal and held that compartments Nos, 30, 31 and 32 could not be attached for satisfaction of decree. It was further held that the alternate remedy against other property under clause 10 of the agreement, could not be granted because the provisions of clause 10 of the agreement relate to pre-decretal period and after the award such clauses have no more any application. The award was relating to forest compartments Nos,10-B part and 12 part, therefore, the attachment order of compartments Nos, 30, 31 and 32 for satisfaction of decree was set-aside. The proceedings once again came in the Court of Sub-Judge Muzaffarabad, who passed fresh order on 12.2.2000. Through the said order, it was directed by the Sub-Judge Muzaffarabad that the compartments Nos,10-B part and 12- part stand already attached for execution of decree and warrant of attachment is still effective, therefore, the proceedings for execution of decree can be continued. The Chief Conservator Forests and concerned D.F.O were directed to render assistance to the decree holder for the extraction of timber. It was further remarked by the Sub-Judge Muzaffarabad that on the face of the order of Supreme Court, compartments Nos, 30, 31 and 32 can be attached. This order was challenged by the appellant in the High Court through an appeal. The learned single Judge, in the High Court, at page 12 of the judgment dated 25.5.2000 directed that the following points may be determined by the executing Court:--
(a) Whether the lease agreement is frustrated and the decree holder is not entitled to any relief through execution;
(b) Whether the decree has been satisfied and to what extent; and
(c) Whether an objection on execution can be taken by the judgment debtor at this stage.
3.The learned single Judge of the High Court, in his order dated 25.5.2000 also made observation that the Sub-Judge Muzaffarabad has not been able to understand the judgment of the Supreme Court. The matter was referred to District Judge Muzaffarabad for execution and it was directed that the District. Judge shall record his findings on the points formulated by the High Court. The appeal was kept pending and the case was adjourned to 15.9.2000. The learned District Judge Muzaffarabad, through its order dated 12.12.2000, submitted a report to the High Court in which it was held that the decree holder has already extracted the quantity of timber from compartments Nos, 10-B part and 12-part over and above the quantity, decreed in his favour. On receipt of this report, the file was placed before the learned Chief Justice of the High Court, who constituted a Division Bench consisting of Mr. Justice Muhammad Reaz Akhter Chaudhry and Mr. Justice Sardar Muhammad Nawaz Khan, (as their lordships were at that time). Due to difference of opinion between the said two learned Judges of the High Court, the file was placed before. Mr. Justice Muhammad Rafiullah Sultani, the learned Judge of the High Court (as he then was), for its disposal.
The learned single Judge in the High Court dismissed the appeal filed by the appellant vide judgment dated 10.4.2009, hence, the present appeal with the leave of the Court. During pendency of the appeal before this Court, it was agreed by both the learned counsel for the parties that the Additional District Judge Muzaffarabad, Raja Muhammad Aslam Khan be appointed as executing Court to settle this long outstanding controversy. This Court, on 11.4.2011, recorded the following Order:-- " "By agreement of the learned counsel for the parties and in exercise of powers vested in this Court under Section 42-A of the AJ&K Interim Constitution Act, 1974, for doing complete justice in the instant case, Raja Muhammad Aslam Khan, Additional District and Sessions Judge Muzaffarabad, is appointed as executing Court. In view of the fact that the subject controversy involves lengthy examination of record about measurement of timber extracted and delivered to the decree- holder, Kh. Nazir Ahmed, Conservator Forests Muzaffarabad, shall assist the executing Court. The executing Court shall finally file its report to this Court up to 30th December 2010
4. Raja Muhammad Aslam Khan, learned Additional District Judge Muzaffarabad, submitted his report on 16.4.2011. From the perusal of report we are of the view that it is not helpful for deciding the appeal, therefore, arguments are heard and appeal is being decided against the judgment of the High Court dated 10.4.2009 on merits.
5. Raja Muhammad Hanif Khan, the learned counsel for the appellant moved an application under Order XIX, Rule 6 read with Order XVII of the of the Supreme Court Rules sought leave of the Court to place reliance on the grounds not specified in the petition and concise statement. The grounds raised are that he wants to argue the case in the light of report of Additional District Judge Muzaffarabad dated March, 2011. He seeks permission to advance arguments in the light of report of District Judge Muzaffarabad submitted on the orders of High' Court dated 12th February, 2000, which concludes that the decree has already been satisfied. He also seeks permission to argue all the points taken in the application.
6. After hearing Raja Muhammad Hanif Khan, we are of the view that the points which the counsel for the appellant wanted to raise, are already taken in the concise statement, therefore, he is allowed I) argue the points which are already part of concise statement.
7. Raja Muhammad Hanif Khan Advocate, while arguing the case on behalf of the appellant, contended that the judgment of the High Court dated 10.4.2009 is not in accordance with 'law on the subject matter, hence, the same is liable to be set-aside by this Court. The learned counsel contended that against the order of Sub-Judge, Muzaffarabad dated 12.2.2000, an appeal was filed before the High Court. The learned Chief Justice of the High Court, vide order dated 18.4.2000, made over the appeal to Mr. Justice Muhammad Siddique Farooqi, the learned Judge of the High Court, (as he then was) and the parties appeared before the learned Judge and addressed their arguments. The learned Judge, vide order dated 25.5.2000, directed that the execution proceedings shall be conducted by the learned District Judge Muzaffarabad and he shall submit his findings on the formulated points, within three months. The registry office of the. High Court was directed to keep the appeal pending and place it before the learned Judge, for further proceedings on receipt of report from District Judge Muzaffarabad and the case was adjourned to 15.9.2000. The learned counsel contended that District Judge Muzaffarabad, submitted his report on 14.12.2000 in which it was held that the decree has been satisfied and the respondents have extracted the timber over and above the quantity which was decreed in their favour. The learned counsel further contended that the parties including respondents have been participating the proceedings and have also been putting their appearance before the learned District Judge Muzaffarabad from 20.5.2000 till 12.12.2000, when the learned District Judge submitted his report. The learned counsel contended that on receipt of this report, the learned Chief Justice of the High Court constituted a Division Bench consisting of Mr. Justice Muhammad Reaz Akhter Chaudhry and Sardar Muhammad Nawaz Khan, the learned Judges of the High Court, (as their lordships were holding seats at that time). The learned counsel further contended that after constitution of Division Bench, neither the learned Chief Justice, nor the Division Bench of the High Court formulated any question of law as per requirement of Rule 16 of the High Court Procedure Rules, 1984, which provides that after constituting the Division Bench, the question of law formulated by the bench in the case shall be determined and the bench shall record its findings on such question and dispose of the case after deciding the question, if any. The learned counsel is of the view that keeping in view the aforesaid provision of law, the proceedings before the Division Bench were illegal. The learned counsel further contended that it was rightly held by the learned single Judge of the High Court, (Mr. Justice Sardar Muhammad Nawaz Khan), while recording his order dated 17.7.2002 that the respondents did not file any appeal against the order of the High Court dated 25.5.2000 which has attained finality. As a result of difference of opinion, the case was referred to third Judge vide order dated 17.10.2002. It is further contended that the learned third Judge, Mr. Justice Muhammad Rafiullah Sultani, agreed with the findings of Mr. Justice Muhammad Reaz Akhter Chaudhry, the learned Judge, (as he then was). The learned counsel pressed into service that the learned third Judge, has violated the provision of Rule 21 of the High Court Procedure Rules and did not comply with the provision of sub- rule (2) of the said Rule, by not considering the points of difference drawn by the learned Judges of the Division Bench. It is further contended that the learned third Judge failed to take into consideration each and every point of difference drawn by each member of Division Bench so as to decide the case on the basis of the opinion of majority of the Judges who have heard the case including the Judges who have first heard it. The learned counsel further contended that as there is no opinion of the learned third Judge on each point, therefore, the judgment under appeal is liable to be set-aside. The learned counsel also contended that all these points were argued by him before the learned third Judge of the High Court and these points were also elaborated in the written arguments filed by the appellant, the learned single Judge of the High Court failed to consider the points agitated by the appellant. The learned counsel contended that the appellant, tiled the appeal before the High Court against the order dated 12.2.2000 and in alternate it was prayed that the same may be converted into revision petition. The respondents failed to, raise any objection when the same was heard as appeal by Mr. Justice Muhammad Siddique Farooqi, the learned Judge of the High Court and the respondents failed to file an appeal against the order of the High Court dated 25.5.2000 and thereafter, the respondents participated into proceedings before District Judge Muzaffarabad, in compliance of the order of the High Co art dated 25.5.2000, therefore, now they are estopped to raise any objection. The learned counsel further contended that the respondents facilitated the District Judge Muzaffarabad to draw his report dated 12.12.2000. The learned counsel is of the view that in the said state of affairs, the appeal was competent before the High Court and one of the learned members of the Division Bench, considered the aforesaid conduct of respondents and held that the respondents were not entitled to raise any section against the judgment of the High Court dated 25.5.2000 and the report of District Judge Mmaffarabad dated 12.12.2000 whereas the other member of the Division Bench has not taken into consideration the aforesaid contention of the appellant. The learned counsel further contended that the aforesaid contention of the appellant was raised before the learned third Judge who has also not taken into consideration the aforementioned contention of the appellant and as a result the order of the learned single Judge of the High Court dated 26.8..2002 and the order of learned third Judge of the High Court dated 10.4.2009 are nullity in the eye of law. The learned counsel placed reliance upon the cases reported as National Bank of Pakistan vs.'
Messeers Ch. Autos and Tools' Agency [PLD 2001 Lah. 135], Abdul Hakim and others vs. Saadullah Khan and 2 others [PLD 1970 SC 63], Mst. Sabia Aziz vs. Director Technical Education and 5 others [2001 SCR 545] and Ghulam Muhammad vs. Custodian of Evacuee Property [PLJ 1984 SC (AJK) 17].
The learned counsel further contended that since the order of executing Court dated 12.2.2000 falls in the definition of decree, the appeal should have been filed in the Court having jurisdiction to hear the appeal. The learned counsel is of the view that value of the original suit in the instant case was admittedly more than Rs, 1,00,000/- hence the appeal was competent before the High Court so as to exercise its original jurisdiction which was unlimited for the reason that the value of original suit exceeds the pecuniary jurisdiction of the Sub-Judge and the District Judge. The learned counsel further contended that the decree dated 20.3.1976 is of more than the value of Rs, 1,00,000/-. The order of executing Court and the direction to the extent of extraction of 11,23,380 cft. of timber will be appealable before the Court having jurisdiction to hear the appeal, so the appeal against the order dated 12.2.2000 before the District Judge was not competent, hence the appellant has very rightly filed appeal before the High Court, against the order dated 12.2.2000. The learned counsel also contended that the High Court fell in error while not converting the appeal into revision petition. It is further contended by the learned counsel for the appellant that the executing Court, in its order dated 12.2.2000, directed the Chief Conservator Forests Department, to hand over the decree holder a quantity of timber to the extent of 11;23,380. cft. The learned counsel contended that the Chief Conservator Forests Department, was not a party to the suit, hence, the said direction given to him was not warranted by law. The learned counsel further contended that the appellant made a request in the High Court that the Highs Court may invoke its inherent jurisdiction of superintendence and control vested in it under Section 46 of the Interim Constitution Act, 1974 and in view of the aforesaid provision of law, the High Court was empowered to exercise its jurisdiction so as to set aside the order of executing Court. dated 12.2.2000 even without any appeal or revision to correct the-errors, illegalities and irregularities committed by the executing Court for the reason that the aforesaid jurisdiction of the High Court is over and above to normal revisional and appellate jurisdiction. The learned counsel further contended that had the appeal been competent before the District Judge, even then the High Court has power to exercise its revisional jurisdiction under Section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned counsel placed reliance upon the cases reported as Muhammad Resham Khan and others vs. Rtd. Subedar Muhammad Amin Khan [2000 SCR 589], Haji Muhammad Latif Khan vs. Muhammad Hanif [2007 SCR 125] and Ghulam Nabi vs. Azad Kashmir Logging and Sawmills Corporation and another [2007 SCR 381]. The learned counsel further contended that it has been a general practice in the High Court that High Court has been exercising its powers by converting appeals into revision petitions and .revision petitions into appeals, hence, the learned single Judge in the High Court fell in error while not converting/treating the appeal filed by the appellant as revision petition. The learned counsel further contended that the report of District Judge Muzaffarabad dated 15.12.2000 and that of the Additional District Judge Muzaffarabad dated 16.4.2011, indicate that the decree issued in favour of the respondents has been satisfied, hence, there remains no point to be resolved by this Court and the. appeal filed by the appellant merits acceptance. The learned counsel further contended that the Form 25, produced before the learned District Judge Muzaffarabad and the learned Additional District Judge Muzaffarabad prove that the quantity of timber issued to the respondents, is over and above the quantity mentioned in the decree, issued in their favour. The learned counsel forcefully argued that under Section 39 of C.P.C., the Court issuing the decree has power to transfer the same for execution to a Court of competent jurisdiction. The High Court transferred the decree to Civil Judge Muzaffarabad for execution on 2nd July, 1978. The decree cannot be transferred to a Court which has no territorial and pecuniary jurisdiction. The decree can only be transferred to a Court of competent jurisdiction under Section 39(2) of the Code. The pecuniary jurisdiction of the Sub-Judge Muzaffarabad was Rs,25,000/- in 1978 and the decree was for execution of Rs, 19,36,670/- which was beyond the pecuniary jurisdiction of the Court and the Court of Sub-Judge was not a competent Court to execute the decree. The learned counsel also pressed into service the argument that the Sub-Judge Muzaffarabad had no territorial jurisdiction in Kairan Division where the decree was to be executed through the extraction of timber.
8. On the other hand, Raja Muhammad Khurshid Khan, Senior Advocate, the learned counsel for the respondents, while controverting the arguments of the learned counsel for the appellant, contended that the order passed by the executing Court was recorded under Section 47 of, CPC. All the questions relating to the execution of decree were to be determined by the Court executing the decree under Section 47 of C.P.C, therefore, the order passed by single Judge in the High Court, Mr. Justice Muhammad Siddique Farooqi, (as he then was), through which he formulated the points and remanded the case to District Judge Muzaffarabad, was not in accordance with law. The learned counsel further contended that as the execution proceedings were to be carried out under Section 47 of the C.P.C, therefore, Section 104 of, CPC was attracted. The learned counsel argued that the appeal was competent only before the learned District Judge and not before the High Court, hence, the impugned judgment of the High Court dated 10.4.2009 is quite in line with law on the subject matter. The learned counsel further contended that the appeal of the appellant has been dismissed by the learned single Judge of the High Court on the ground that the proceedings carried out by the executing Court, under Section 47, CPC can only be challenged before the District Judge, through an appeal. The learned counsel further contended that Mr. Justice Muhammad Siddique Farooqi, the learned Judge of the High Court, (as he then was) has not finally disposed of the appeal. He kept the appeal pending and remanded the case to the learned District Judge Muzaffarabad after formulating the points in dispute, while exercising the powers under Order XLI, Rule 25 of, CPC. This rule empowers the appellate Court to remand the case to the trial Court for ascertaining certain facts and such Court can keep the appeal pending till the evidence is recorded by the lower Court and submitted to it along with its findings. This appeal, according to the learned counsel, was to be decided on receipt of evidence together with the findings from the District Judge. The file was transmitted to the District Judge by the learned single Judge of the High Court for determination of some questions of facts provided under Order XLI Rule, 25 of the Civil Procedure Code. The learned counsel stressed that Rule 25 ascribes the powers of the appellate Court to frame issues and send it to the Court below to record the evidence and send the evidence along with its opinion to the appellate Court. The learned counsel contended that the learned single Judge of the High Court, Mr. Justice Muhammad Siddique Farooqi, (as he then was) while remanding the case to District Judge Muzaffarabad committed illegality and irregularity for the reason that if any such eventuality arises, the case was to be remanded to the trial Court whereas in the case in hand, the file was transmitted to the District Judge Muzaffarabad and not to Senior Civil Judge Muzaffarabad, who was executing the decree. The learned counsel further contended that the order of learned single Judge of High Court, Mr. Justice Muhammad Siddique Farooqi, (as he then was), clearly reveals that he kept the original appeal pending before it and it cannot be said that the objection regarding non-maintainability of the appeal has not rightly been raised by the learned counsel for the respondents, as appeal was yet to be decided by the High Court in view of the aforesaid order of Mr. Justice Muhammad Siddique Farooqi, the learned Judge High Court (as he then was). The learned counsel vehemently argued that the appeal was not decided by Mr. Justice Muhammad Siddique Farooqi, and was kept pending for disposal after receipt of evidence or opinion of the District Judge Muzaffarabad. The learned counsel further contended that the appeal before the High Court was not maintainable as Section 47 of, CPC which contains that all the questions relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court, executing the decree. According to the learned counsel, in the instant case, main dispute between the parties was regarding the satisfaction of decree, therefore, this order was passed by the executing Court under Section 47 of, CPC. Section 104, CPC clearly contains that an appeal shall lie against the order passed under Section 47, CPC, before District Judge. The learned counsel further contended that it was rightly held by the learned single Judge in the High Court, in the judgment under appeal that the inherent powers under Section 151, CPC and under Section 35, the. Courts and Laws Code, 1949, the powers of superintendence and control, under Section 46 of the Interim Constitution Act, 1974 can be exercised. Such powers can only be exercised when no codal provision exists in the matter whereas in the case in hand, Sections 47 and 104, CPC are attracted, hence, there is no question of exercise of inherent powers by the High Court or exercise of powers under Section 35 of the Courts and Laws Code. The learned counsel further contended. that it is well settled , law that when a remedy is provided by law then same remedy cannot be extended to a party while invoking the powers under Section 151, CPC. The learned counsel placed reliance upon Lahore Development Authority vs. Messers Own Home Service Ltd. [PLD 1983 Lah. 475] and Karamatullah Khan vs. Govt. of West Pakistan [PLD 1967 Lah. 171].
9. The learned counsel further argued that the inherent powers are not meant for frustrating the clear provisions of law as has been held in the cases reported as Mst. Hanifa Begum vs. Hassan Shaikh and 3 others [PLD 1983.SC (AJ&K) 163], Karamatullah Khan vs. Govt. of West Pakistan [PLD 1967 Lah. 171], Lahore Development Authority vs. Messers Own Home Services Ltd. [PLD 1983, Lah, 475] and Munawar Hussain and another vs. Rehmat Ali [PLD 1979 Lah. 215]. The learned counsel further contended that both the learned Judges of the High Court, Mr. Justice Muhammad Reaz Akhter Chaudhry and Mr. Justice Sardar Muhammad Nawaz Khan, who recorded separate judgments, held in their judgments that no appeal against any order of executing Court lies before the High Court, however, Sardar Muhammad Nawaz Khan, the learned Judge, (as he then was), expressed his opinion that the High Court can exercise its powers under Section 151 of, CPC and Section 46 of the Interim Constitution Act, 1974. The learned counsel vehemently contended that the powers vested in the Court under Section 46 (1) of the Interim Constitution Act, 1974, relate to the administrative aspect and not to the judicial matters. The administrative control of the High Court does not empower the High Court to violate the codified law. In this regard, the learned counsel placed reliance upon a case reported as Amjad Khan vs. Haji Muhammad Yameen Qureshi [PLD 1994 Kar. 404], The learned counsel further contended that the High Court cannot convert the appeal into revision or revision petition in to appeal when no appeal or revision petition lies before it and the High Court can exercise this power only in the matters where no codal provision of law is provided whereas in the case in hand, the order or decision of the executing.
Court could be assailed before the District Judge through an appeal as provided under Section 104 of, CPC. The learned counsel lastly contended that the learned third Judge of the High Court, Mr. Justice Muhammad Rafiullah Sultani, (as he then was) has committed `no illegality or irregularity while recording the impugned judgment dated 10.4.2009, hence, the present appeal filed by the appellant is liable to be dismissed and the judgment of the High Court is liable to be maintained.
10. We have heard the learned counsel for the parties and gone through the record placed on the file by the learned counsel for the parties. We have also perused the written arguments filed by both the counsel for the parties.
11. An arbitrator was appointed in the light of agreement dated 4.4.1966. The Arbitrator determined that the lessee, Brig. Muhammad Aslam, is entitled an amount of Rs, 22,43,579/- to receive from the Government. This amount was to be received through extraction of timber lying on eastern side of Line of Control. He was entitled for extraction of timber of the measurement of 1121779 c.ft., interest on amount and 10% depreciation from January 1964 which comes to 1458326 c.ft. upto 2nd January 1967 and 1570505 c.ft in January 1968. The High Court amended the award and declared it void to the extent of interest plus ten percent of the depreciation on timber. The award to the extent of 1121779 c.ft. was made rule of the Court. The decretal amount after deducting the interest comes to Rs, 19,36,670/- on the value of which the decree was to be executed through extraction of timber.
12. The High Court transferred the decree for execution to Sub-Judge Muzaffarabad. Whether the Sub-Judge Muzaffarabad was a competent Court as stipulated in Section 39 of C.P.C. or not and whether the High Court could transfer the decree? The pro-visions of Sections 37, 38 and 39 of C.P.C. are relevant for the purpose, which for facilitation are reproduced hereunder:-- "37. Definition of Court which passed a decree.--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--
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(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 the execution of the decree, would have jurisdiction to try such suit.
38. Court by which decrees may be executed.--A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
39. Transfer of decree.--(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court--
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction."
Section 37, CPC deals with the expression "Court which passed a decree" and Section 38, CPC provides the Court which may execute the decree. A decree may be executed either by the Court which passed it. or by the Court to which it is sent for execution. Section 39, CPC deals with the transfer of decrees. There are two parts of Section 39. Sub-section (1) deals with transfer of a decree on the application of the decree-holder. The Court may transfer the decree for execution to another Court on the ground that if the person against whom the decree is passed actuallynd voluntarily resides or carries on business or personally works for gain within the local limits of the jurisdiction of such other Court, or if such other person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court. A decree can be transferred under subsection (1) on an application of decree-holder in four eventualities, mentioned above. The Court issuing decree may transfer the same for execution on these grounds.
The words "competent jurisdiction" are missing in sub-section (1). The language implied is that the decree issuing Court can transfer the same to another Court on application, but the language of sub-section (2) of Section 39 is different from sub-section (1). Sub-section (2) empowers the Court passing decree to send it for execution to any subordinate Court of competent jurisdiction. The words "subordinate Court" and "of competent jurisdiction" are significant. Two conditions appear necessary for sending a decree for execution to another Court. Firstly that it shall be a Court subordinate to the Court which passed the decree and secondly that it shall be a Court of competent jurisdiction. Jurisdiction may be territorial and pecuniary. Competent jurisdiction may be that the Court has power to try the suit and jurisdiction to execute the decree. The power under sub-section (2) of Section 39 to send the decree for execution to subordinate Court of competent jurisdiction can be exercised without meeting the requirements of sub-clauses (a) to (d) of sub- section (1) of Section 39, CPC. The words "competent jurisdiction" mean both territorial as well as pecuniary -jurisdiction. If the amount of decree exceeds the pecuniary jurisdiction of executing Court, such Court is not a Court of competent jurisdiction. Our this view finds support from a case reported as Mt. Anchahi us. (Firm) Birjmohan Lall, Madan Lall and others [AIR 1936 Patna 177] wherein it was observed as under:-- "Here a point has been taken which does not seem to have been raised before either of the Courts below, viz., that the learned Munsif had no power to execute the decree. In my opinion this point though not taken before either of the Courts below must prevail. In this case the decree or order for costs was passed by a Subordinate Judge. The execution of a decree passed in a suit can only be carried out by a Court which is competent to entertain the suit of the particular value. This is not a case of irregularity which can be cured by waiver. This is a case of inherent want of jurisdiction. It was laid down by this Court in Amrit Lal v. Murlidhar [1922 Pat 188] that a Court which has no pecuniary jurisdiction to entertain and try an original suit is not competent to execute the decree in that case, which, therefore, cannot be transferred to it for execution under S. 39, C.P.C. It does not require much argument to hold that it will be anomalous if a decree passed by a Subordinate Judge whatever its amount may he can be sent for execution to a Munsif with a limited pecuniary jurisdiction."
The same view was reiterated in another case reported as Shanti Lal vs. Mt. Jamni Kuer [AIR 1940 Allahabad 331] wherein it was observed at page 335 as under:-- "The point raised in this Court is different. It is argued that the application dated 4th December 1933 was not a step-in-aid of execution because it was not made in accordance with law, arid the reason given for this contention is that it made a prayer which the Court of the Civil Judge was not competent to grant, namely that the decree be transferred to the Court of the Munsif. It is argued that the Court to which a decree is sought to be transferred must be a Court having pecuniary jurisdiction to hear the original suit culminating in the decree, irrespective of the amount for which the decree has been passed. It seems to me that on the facts of this case the question which arises is: Has a Court to which a decree is sent for execution under S.39 of the Code jurisdiction to execute the decree, if the amount of the decree exceeds the limits of the pecuniary jurisdiction of that Court?" and not whether a Court to which a decree is sent for execution has jurisdiction to execute it if the amount at which the suit is valued exceeds the limits of the pecuniary jurisdiction of that Court. Thus, the question which actually arises on the facts of this case is somewhat narrower than the question which has been argued, and it seems to me that some of the cases on which reliance has been placed by the learned counsel for the appellant are really not applicable. In some of them the amount of the decree itself was much beyond the jurisdiction of the Court to which the decree was transferred. In some others the amount of the decree for which execution was sought does not appear from the report."
13. The legal position is quite clear and it can safely be held that a decree can only be executed by a Court competent to try the original suit and execute a decree. If the decretal amount was much beyond the jurisdiction of the Court to which the decree was transferred, then the decree cannot be transferred to such Court for execution. The decree is admittedly of an amount of Rs,19,36,670/-.
Under Section 31 of the Azad Jammu and Kashmir Courts and Laws Code, 1949, the Sub-Judge 1st Class had jurisdiction to try a suit up to the value of Rs,25,000/- in the year 1978 when the decree was transferred to him. Therefore the decree for execution could not be transferred to Sub-Judge for execution. The High Court under Section 39 of, CPC can, only transfer a decree for execution to a Court subordinate to it and of competent jurisdiction. Although it was a Court subordinate to High Court, but it was not a Court of competent jurisdiction. All the proceedings taken by the Sub-Judge and the subsequent proceedings culminating into appeal, revision, writ petition in the High Court or appeal before this Court, on the basis of order dated 2nd July, 1978, whereby decree was transferred to Sub-Judge Muzaffarabad for execution by the High Court were result of said order and the same are nullity in the eye of law.
14. Since the transferee Court was not a Court of competent jurisdiction, it had no power to execute the decree. Since we are going to decide the appeal only on this point, the deliberation on other law points argued by the counsel for the parties will only be an exercise in futility and of academic discussion.
15. In the light of what has been stated above, the appeal is accepted. The judgment of the High Court dated 10.4.2009 is set aside. The execution application shall be deemed to be pending in the High Court. The District Judge is vested with the jurisdiction to hear cases of unlimited pecuniary jurisdiction as such has jurisdiction to execute the decree of unlimited value. For the area of Kairan, a new District by the name of "Neelum" has been created and the Court of District Judge in the area has also been established, therefore, the decree is transferred to District Judge Neelum for execution.
16. There is an unhappy history of litigation of around a half century. The District Judge Neelum is directed to finalise the execution of decree within a period of four months. The office is directed to immediately transfer the record to District Judge Neelum.