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Judgment
Das, J.—I think these appeals must fail on the ground that the Court below had no jurisdiction to entertain the application. Shortly stated the facts are as follows:
Certain property was sold in execution of a decree obtained by the decree-holder-respondents as against the appellants. The appellants applied for setting aside the sale under Order XXI, Rule 90. That application failed in the Court below and thereupon they appealed to this Court, and by consent of the parties an order was passed to the effect that if the debtors-appellants paid the sum of Rs. 80,607-80 to the respondents on or before 30th April, 1927, the sale would be set aside but that if they failed to make the payment within the time allowed the appeal to this Court would stand dismissed and the sale would be confirmed. This was an order passed by this Court and under it, the judgment-debtors had time till 30th April, 1927, to make the payment to the decree-holders. On. 1st May, 1927, the judgment debtors applied to the executing Court below under Order XXI, Rule 2, para 2, for an order that the payment alleged to have been made by her to the decree holders on 30th April, 1927, be recorded as certified. Her case was that in pursuance of the order of this Court she paid the whole of the decretal amount to the decree-holders on 30th April, 1927, on the undertaking of the decree holders that they shall certify such payment to the executing Court. The judgment-debtor took out summonses to examine various witnesses to prove her case as to the payment to the decree-holder on 30th April, 1927, but the summonses were not properly served, and the learned Subordinate Judge refusing to grant further adjournment ultimately dismissed her application. She now appeals to this Court.
It appears to me that the proper Court to hear the application is this Court and not the Court of the learned Subordinate Judge. Order XXI, Rule 2, has no application to this case. That rule only applies where there is a pending execution in the Court; but in this case the execution has come to an end. Therefore, this Court was the proper Court where the application should have been made. It is not necessary to pursue the point for it is obvious that Order XXI, Rule 2 has no application. I would, therefore, dismiss the appeals on the ground that the executing Court below was not competent to entertain the application of 1st May, 1927. This order will govern the various other miscellaneous appeals and civil revisions cases which have been made analogous.
Fazl Ali, J.
I agree.