CW- 5175/08-Smt. Sunder BaiVs. Joint Hindu Family through Karta. Judgment dt.1.8.08 1/2 S.B. CIVIL WRIT PETITION NO.5175/2008 Smt. Sunder Bai Vs. Joint Hindu Family through Karta Sh. Shreelal. Date of order : 01st August, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. C.S. Kotwani for the petitioner. --------- 1. Heard learned counsel. 2. This writ petition is directed against the order dated 24.7.2008 whereby the learned trial court rejected the application of the objector-judgment debtor on the ground that the Court did not have jurisdiction to execute the decree passed by the first appellate court. 3. Learned counsel for the petitioner relies upon Section 38 C.P.C. which provides that a decree may be executed either by the Court which passed it or by the Court which it sent for execution. He submits that since the decree was passed by the first appellate court, was not sent by the Court of first instance for execution, the said Court did not have the jurisdiction for executing the same. 4. I have considered the submission. The submission made by the learned counsel has no force in view of the definition of the Court given in Section 37 which has power to execute the decree. The said section clearly provides that the expression “Court which passed decree” shall be deemed to include (a) where the decree to be executed has been passed in exercise of appellate jurisdiction, the Court of first instance. CW- 5175/08-Smt. Sunder BaiVs. Joint Hindu Family through Karta. Judgment dt.1.8.08 2/2 5. In view of this clear definition, if the execution proceedings have been filed in the Court of first instance i.e. learned Additional Civil Judge (Senior Division), Banswara even though the decree was passed by the Court of learned Additional District Judge, Banswara, the said objection of the petitioner was obviously not tenable and has thus been rightly rejected by the learned Executing Court. 6. This Court finds no force in the writ petition. The same is accordingly dismissed in limine. A copy of this order be sent to the Executing Court and respondent forthwith. [ DR. VINEET KOTHARI ], J. item No.15 babulal/-