1. ' The brief facts out of which the present appeal arises are that respondent No.1 filed a suit for recovery of 'Rs.7,00,000 under Order 37, Rule 2, C.P.C. Against respondent No.2 in the Court of District Judge, Jhang. Respondent No.2 filed an application to appear and defend the suit in the Court of District Judge, Jhang, who granted the leave to appear and defend to respondent No.2 subject to furnishing surety bond in the sum of Rs.7,00,000 vide order dated 11-12-1999. The learned District Judge Jhang decreed the suit vide judgment and decree dated 4-7-2000. .Respondent No:2 being aggrieved filed R.F.A.. No.434 of 2000 before this. Court, which was accepted vide order dated 23.1- 2001 subject to the condition that respondent No.2 shall fulfil the requirements of Order dated 11-12- 1999 within 15 days. In case respondent No.2 fails to comply with the direction of the trial Court dated 11-12-1999 in letter and spirit within 15 days from the date 23-1-2001 (the date of announcement of order), then the suit of respondent No.1 shall be deemed to be decreed.
2. Respondent No.2 filed an application in the Court of District Judge, Jhang with the prayer to file surety bond alongwith the surety of appellant, which was accepted by the District Judge, Jhang.
3. Respondent No. 1/decree-holder filed an application on 15-11-2001 for cancellation of the surety as the appellant has not sufficient property to meet with the amount claimed in the suit. Out of the divergent pleas the District Judge framed the following issues:--
(1) Whether the registered sale-deed dated 12-10-1965 is fake? OPD
(2) Relief.
4. ' The District Judge finally decreed the suit vide judgment and decree dated 14-5-2002.
5. Respondent No.1 filed execution petition before the District Judge, who transferred the same for execution to the Civil Judge Ist Class, Jhang under section 39(2) of C.P.C. The appellant stood surety on 16-2-2001 in the Court of District Judge. The appellant submitted the application for dismissal of the attendance of the appellant before the transferee Court, who dismissed the same vide . Order dated 12-3-2004, hence, the present appeal:
2. The lerned counsel of the appellant submits that the surety of the appellant was , not sufficient as is evident from . The contents of the application of respondent No.1/decree holder. He further submits that suit of respondent No.1 was decreed by the District Judge vide judgment and decree dated 14-5-2002 on the ground that respondent No.2 failed to furnish sufficient surety in terms of the order dated 23-2-2001 passed by this Court in R.F.A. No.434 of 2000. He further submits that impugned order is not sustainable in the eye of law and is in violation of the order dated 23-1-2001 passed by this Court in R.F.A. No.434 of 2000.
3. The learned counsel of the respondent raised a preliminary objection qua the maintainability of the appeal in view of the enhanced pecuniary jurisdiction of the District Judge under the provisions of West Pakistan Amendment Civil Court Ordinance, 1962. He further submits that the District Judge was justified to transfer the decree for execution to the Civil Judge Ist Class, by virtue of section 39M C.P.C. And the appellant has to file appeal before the District Judge in view of section 42(1) of C.P.C. He further submits that respondent No.2/judgment-debtor is son of the appellant. He further submits that appellant has submitted surety in the Court. The respondent/decree-holder has filed application that property of the appellant is not sufficient and this fact was noted in the impugned order by the Civil Judge as the appellant admitted that appellant is only owner to the extent of half of the land under surety bond. He further submits that surety submitted by the appellant is intact till date, as the appellant did not file any application for cancellation of the said surety bond. He further submits that .The appellant as well as respondent No.2 did not agitate decree passed by the trial Court against the respondent No.2 vide judgment and decree dated 14-5-2002. The learned counsel of the appellant in rebuttal submits that appellant has submitted surety before the trial Court, which was automatically cancelled in view of the order of this Court on 23-1-2001, which would be read along with the application filed by respondent No.1/decree-holder for cancellation of surety bond.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. I would like to deal with the preliminary objection raised by the learned counsel of the respondent No.1 qua maintainability of the appeal before this Court, therefore, it is better and appropriate to reproduce sections 39(2) and 41(1) of C.P.C.
6. "Section 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:-
(2) The Court, which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
7. ' Section 42.. Power of Court in executing transferred decree:---(1) The Court executing a decree sent to it shall have the' same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstruction the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
8. (Underlined is mine).
9. ' Section 42 of C.P.C. Was interpreted by the Division Bench of the Calcutta High Court in Jaminibala Debi v. Karali Prasad Mukherjee AIR 1921 Cal. 242, which is exactly on the point. It was held there:-- "When however, the decree has been transferred to the ordinary Court to be executed as if it were a decree made by that Court, the orders, made in execution are appealable in the same way as orders made in execution of decrees passed by that Court."
10. ' The aforesaid judgment was considered and followed by the Patna High Court in Anata Sahu v.
11. Baraju Sahu AIR 1949 Patna 624. The same question of law has been raised in Madras High Court in A.P. Jambulinga Mudaliar v. A.S. Vadivelachari and others AIR 1956 Madras 390. The relevant observation is as follows:-- "Under the circumstances it seems clear to us that the forum to which an appeal would lie from a decision of a District Munsif's Court when a decree has been transmitted to it for execution is the District Court."
12. The ratio of that judgment is that where a decree passed by the High Court is transferred to the Court of subordinate Judge for execution, an appeal from the decision of the Executing Court will lie to the District Judge and not, to the High Court. The aforesaid proposition of law is also supported by the following judgments: - ' Jalla Mall Jawahar Mall v. Motia AIR 1941 Lahore.109.
13. ' Maria Ursula and others v. Pana Navalaji & Co. AIR 1928 Bombay 534(2).
14. ' The phrase underlined in the aforesaid section i.e. "shall be subject to the same rules in respect of appeal" is considered in the following judgments:-- ' Mr. Lareti v. Hazarilal and others AIR 1916 Allahabad 293.
15. ' Maria Ursula and others v. Pana Navalaji & Co. AIR 1928 Bombay 534 (2).
16. ' Jaminibala Debi v. Karali Prasad Mukherjee AIR 1921 Calcutta 242.
17. ' Ananta Sahu v. Baraju Sahli AIR 1949 Patna 624.
18. The ratio of the aforesaid judgments is that an order in execution passed by the transferee Court will be appealable, where if the decree had been passed by itself such would be appealable.
19. ' In view of what has been discussed above, the appeal is not maintainable, which is returned to the appellant to file before the competent Court.