Full Judgment
Hutchins, J.
1. The plaintiff (appellant) sued as assignee of a purchaser in execution to eject the judgment-debtor (respondent) from the lands sold in execution. The decree was passed by the Subordinate Judge in a Small Cause suit. The Subordinate Judge's Court was then abolished and the decree came into the District Court for execution. It was transferred for execution to the District Munsif, who would have had jurisdiction to try the cause as a regular suit but for the existence of a superior Court with Small Cause powers up to Rs. 500. The lands were then regularly attached and brought to sale and the purchase by the appellant's vendor was duly confirmed.
2. The District Judge, however, has now held the sale to have been void, because the preliminary procedure required by Section 20, Act XI of 1865, had not been observed.
3. The decree was passed against the assets of one Siddamma, deceased. It is not alleged that Siddamma left any moveable property against which execution might have been taken, nor that the property in suit was not Siddamma's. The irregularity, therefore, if there was one, was a mere formal omission, and in our judgment the defendant is not entitled to take advantage of it. He has no right to Siddamma's property, unless subject to the decree under which execution was had. He must have had notice of the attachment and sale, and even if not, the attachment would have given him notice: yet he raised no objection, and, except for the absence of the certificate required by Section 20 above mentioned, all the proceedings were duly conducted.
4. It is not, therefore, necessary for us to determine whether such a certificate ought to have been given, but we are disposed to think that it was not at all necessary. The decree had, by the abolition of the Small Cause Court, become a decree which the District Court might have executed and was by it regularly transferred to the District Munsif. Once seized with the duty of executing it, the District Munsif was entitled to execute it as a decree of his own Court, and it was one which he could not have passed in his Small Cause jurisdiction.
5. Besides, the decree and all the proceedings being before him, he was able to ascertain without a certificate whether the moveables were exhausted, and there was sufficient ground for going against the immoveables.
6. We reverse the decree of the Appellate Court and restore that of the Munsif.
7. The respondent must pay the costs of both appeals.