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On August 1, 1930, the territorial jurisdiction over the mortgaged properties was transferred from the Court at Bapatla to the Court of the Subordinate Judge at Tenali and the suits pending in the Bapatla Court were transferred to the Court at Tenali. But this particular mortgage suit was not transferred. On May 8, 1934, the High Court disposed of the appeal which was pending against the preliminary decree and made certain modifications in the decree and the decree-holder, without applying for obtaining a final decree in terms of the modification introduced by the High Court, filed in the Court at Tenali on 2-4-1937, a petition for execution of the decree against the judgment-debtor. This application was dismissed on 26-1-1939.

A fresh execution petition was filed in the Court at Tenali in 1940 and the objection was taken that the decree was unexecutable in the absence of a final decree passed in accordance with the decree of the High Court and that the Tenali Court had no jurisdiction to entertain the execution petition, and the Court held that the order passed by the Court at Tenali on the first darkhast was an order directing execution to proceed on the footing that the decree was one capable of execution and of being executed by the Court, and that order operated as res judicata in subsequent execution proceedings, and the Court also held that the Court at Tenali had inherent Jurisdiction over the mortgaged properties which were situated within its territorial limits, and that the absence of an order of transfer of the decree by the Court at Bapatla in accordance with Section 39 of the Civil Procedure Code was only an irregularity in the assumption of jurisdiction by the Court at Tenali.

Mr. Jape relies on both parts of this decision. He says that here also we have a case where a darkhast was presented to execute a decree which was not executable, and inasmuch as no objection was taken by the judgment-debtor, the order was held to operate as res judicata.

Now, the distinction is clear. In this case there was a decree absolute passed by the trial Court. The preliminary decree was modified by the High Court and it is true that the decree-holder should have obtained a proper final decree in terms of the preliminary decree passed by the High Court which decree should have been executed. But on the facts it could not be said that the final decree was set aside and ceased to exist as in the case we have before us. Therefore, on the peculiar facts of that case the Madras High Court held that the doctrine of res judicata came into operation. On the other point also the position is different from the position we have here. By an administration order the Court at Tenali was given jurisdiction over the mortgaged properties and the Madras High Court was dealing with a mortgage suit. Therefore, when the application for execution was presented to the Tenali Court, the Tenali Court was the Court which could have passed the decree in the suit. As a matter of fact that was the only Court that could have passed the decree, the jurisdiction having been taken away from the Bapatla Court. It was under these circumstances that the Madras High Court held that the Tenali Court had inherent jurisdiction to execute the decree inasmuch as it had jurisdiction over the mortgaged properties and therefore jurisdiction to entertain the mortgage suit.