Skip to content


Rangaswami Shetti Vs. Sheshappa Manjappa Shimpi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 429 of 1921
Judge
Reported in(1922)24BOMLR798
AppellantRangaswami Shetti
RespondentSheshappa Manjappa Shimpi
DispositionAppeal dismissed
Excerpt:
.....passed a decree. after ineffectual attempts to execute the decree, the decree-holder got the decree transferred in 1914 to the sirsi court in the bombay presidency. in 1916 the decree-holder applied to the salem court for a transfer of the decree to the district munsiff at sagaram in the mysore state, nothing having been done at sirsi, the sirsi court returned the decree unexecuted to the salem court in 1918. in 1919 the salem court again transferred the decree to the sirsi court for execution. the decree-holder applied on the 9th june 1919 to the sirsi court to execute the decree, relying upon the application, which he had made to the salem court in 1916 to transfer the decree to the sagaram court, as a step-in-aid of execution:-;that, after the salem court had transferred its..........express provision in the code as to what procedure a party is to adopt when he wants to get the decree transferred again to another court. there is no provision as to whether in such a case the application should be made by him in the first instance to the court to which the decree has been transferred or to the court which originally passed the decree, and which made the order transferring the decree for execution on the first occasion. the difficulty arises from the absence of any express provision in the code on the point. it is possible, however, to read section 42 of the code in & comprehensive manner, and to hold on the words of that section that even an application for the transfer of the decree again to another court must be made in the first instance to the court to which the.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff's obtained a decree in the Court of the Principal District Munsiff of Salem of the Madras Presidency in 1910. After ineffective attempts at execution the decree-holder applied that the decree should be transferred to the Court of the Subordinate Judge of Sirsi in the Bombay Presidency for execution. The decree was transferred in July 1914. No steps were taken in the Sirsi Court to execute the decree and the Sirsi Court returned the decree unexecuted to the Salem Court in November 1918. In 1919, the Salem Court again transferred the decree to the Sirsi Court and the present Darkhast was filed on 9th June 1919. The judgment-debtor opposed on the ground that execution was barred. The question was whether an application which had been made on the 4th August 1916 to the Salem Court praying that the decree might be sent to the District Munsiff of Sagaram in the Mysore State for execution was a step-in-aid in execution made to the proper Court. The District Judge, following the decison in Maharajah of Bobbili v. Narasaraju Peda Srinhulu came to the conclusion that the Salem Court was not the proper Court in which to apply to take a step-in-aid when the decree had been transferred to the Sirsi Court. Under Schedule I, Article 182(5), of the Indian Limitation Act the period of limitation applicable is three years from the date of applying in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree, and the 'proper Court' by Explanation II means the Court whose duty it is to execute the decree or order. Under Order XXI, Rule 10 'where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.' In Maharajah of Bobbili v. Narasaraju Peda Srinhulu a decree was passed by the District Court and was sent to the Court of a Munsiff for execution, and it was held that when the decree of a District Court had been sent, under the Code of Civil Procedure, 1882, Section 223, to the Court of a Munsiff for execution and had not been returned to the District Court, the 'proper Court' within the meaning of the Indian Limitation Act, 1908, Schedule I, Article 185 (5), in which to apply 'for execution, or to take some step-inlaid of execution' of the decree was the Court of the Munsiff with the result that an application to the District Court would not prevent the time for enforcing the decree from running (under Article 182) from the date upon which it was made.

2. In that case the application to the District Judge was for execution of the decree by sale of immoveable properties whereas in this case there was an application to the Court of Salem for the transfer of the decree to another Court. It seems to me to make little difference whether there is an application for execution or only an application to take a step-in-aid of execution. For it clearly seems to have been their Lordships' opinion that when the Court which has passed a decree sends it for execution to another Court, then the first Court ceases to be the proper Court within the meaning of Schedule I, Article 182 (5), of the Indian Limitation Act. Therefore the decision of the District Judge was right and the appeal must be dismissed with costs.

Shah, J.

3. I have felt some difficulty in this case. Though it is clear from the provisions of Section 42, that when the decree is once transferred to another Court, that Court has the same powers in executing such decree as if it had been passed by itself. I do not find any express provision in the Code as to what procedure a party is to adopt when he wants to get the decree transferred again to another Court. There is no provision as to whether in such a case the application should be made by him in the first instance to the Court to which the decree has been transferred or to the Court which originally passed the decree, and which made the order transferring the decree for execution on the first occasion. The difficulty arises from the absence of any express provision in the Code on the point. It is possible, however, to read Section 42 of the Code in & comprehensive manner, and to hold on the words of that section that even an application for the transfer of the decree again to another Court must be made in the first instance to the Court to which the decree has already been transferred; and the observations in Maharajah of Bobbili v. Narasarajupeda Srinhulu show that all the applications after the decree is once tranferred for execution to another Court, in connection with its execution, must be made to that Court. No doubt the application in that case was for the execution of the decree, and as it was made to the Court which had already transferred the decree, it was held that the application was not made to the proper Court. The application in the preset case is not exactly of that kind, and I should have been glad to see my way, if possible, to hold that another application for a transfer to a third Court might be made to the Court which had originally passed the decree. At any rate it may be said in favour of that view that there is no express provision prohibiting such a procedure. At the same time there is much to be said in favour of the view accepted by the lower appellate Court, and by my Lord the Chief Justice. On the whole I think, though not without hesitation, that the application in this case to the Salem Court, which had already transferred the decree for execution to the Sirsi Court, for a transfer of the decree to another Court, cannot be treated as having been made to the proper Court and therefore cannot be held to be a step-in-aid of execution.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //