Skip to content


S. Sundara Rao Vs. B. Appiah Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 171/1949-50
Judge
Reported inAIR1954Kant1; AIR1954Mys1
ActsLimitation Act, 1908 - Schedule - Articles 179, 182 and 182(5); Code of Civil Procedure (CPC), 1908 - Sections 38, 39, 41, 42 and 50 - Order 21, Rules 6, 7, 26 and 28
AppellantS. Sundara Rao
RespondentB. Appiah Naidu and anr.
Appellant AdvocateNittoor Srinivasa Rao, Adv.
Respondent AdvocateS.K. Venkataranga Iyengar, Adv.
Excerpt:
.....application for transfer was step-in-aid of execution which would enlarge period of limitation - decree-holder's application made to court which passed decree for transferring decree to munsif's court long after first application for transfer presuming bona fide that latter court must have sent back to former court report under section 41 along with decree copy must be held in step-in-aid. - mines and minerals (regulation and development) act (67 of 1957) section 9-a & mineral concession rules, 1960, rules 31 & 27: [ram mohan reddy, j] power to tax - levy of lease rent and supervision charges on leased forest land release of forest land for mining purposes in favour of petitioners subject to payment of lease rent and supervision charges - impost of lease rent and supervision..........observed in that case:'the decree-holder could not have obtained a transfer without the decrees copy filed; the application was till then a defective one, and only became an application in accordance with law when the copy was filed.'' it is contended in this case that though the application for transfer of the decree was filed in time, it was not a valid application as the copy of the decree was filed after' the period of limitation. it is next urged that the transferring court had no jurisdiction to receive any application for transfer as the decree copy sent along with the previous transfer proceedings had not been returned to that court from the transferee court. it is, therefore, of some importance to examine whether it is obligatory, for the decree-holder to file a copy of the.....
Judgment:

Venkata Ramaiya, J.

1. The appellant is a judgment-debtor who has failed in both Courts in his contention that the decree, execution of which, is sought by respondent 1, is inexecutable. The decree is for payment of money by the appellant and another. It was passed in the Court of the First Munsiff, Bangalore, on 28-8-1932 and transferred on the application of the decree-holder, more than once to the Court at Mysore where the appellant resides. The first order for transfer was made on 7-6-1935 in Execution Case No. 1048 of 34-35, the second was On 22-7-1938 in Execution Case No. 1092 of 37-33, the next one was in Execution Case No. 949 of 40-41 on 14-10-1941. After this, Execution Case No. 643/41-42 was filed in the First Munsiff's Court Mysore, for executing the decree but dismissed on 29-5-1942 on account of non-payment of process. Transfer of the decree was again applied for in Execution Case No. 547/42-43 on the file of the First Munsif, Banealore, and obtaining order for the same on 23-2-1942, respondent 1 instituted Execution Case No. 850/42-43 in the Court of the First Munsif, Mysore, for recovery of the amount by arrest of the appellant and attachment of his moveable properties.

2. The objections to the execution raised in the Courts below and repented here are, that mere filing of successive applications for transfer of the decree does not extend the time for purpose of execution, that the first application for execution, Execution Case No. 643/41-42 being filed more than 6 years from the date of decree, there is bar of limitation. As an additional reason for the same it was pointed out that more than three years from the date of disposal of the previous application had elapsed when copy of the decree was filed in Execution Case No. 1092/37-38 and that the later applications for transfer were filed without. report of non-satisfaction from the transferee Court.

3. The points for consideration chiefly are whether application for transfer is a step-in-aid of execution which would enlarge the period of limitation, whether production of copy of the decree is necessary for an application for transfer and whether a second or subsequent application for transfer is of no effect if at the time it was filed there was no report of non-satisfaction of the decree from the transferee Court to the Court which passed the decree. It cannot be denied that transfer of the decree is a necessary preliminary to the execution of the same in another Court and as such is a 'step-in-aid' of execution. The opinion of the Full Bench in --'25 Mys. C. C. R. 298 (A)' is sufficient authority for this. As expressed in --'Manmatha Pal v. Sarada Prasad', MB 1933 Cal. 651 at p. 655 (B)

'An application for transfer of a decree is a step-in-aid of execution. By that application the decree-holder asks the Court which passed the decree to assist him for the purpose of carrying further proceedings to realise his decree.' Since the appellant is admittedly a resident in Mysore, want of bona fides in seeking the transfer of the decree cannot be imputed to the decree-holder. As each application was filed within three years from the date of disposal of the prior application, these must all be held to be within time.

4. The date on which copy o the decree was produced in the proceedings for transfer cannot affect the question of limitation unless it is possible to hold that this application is not valid till the copy is filed. It has been clearly stated in --'Rama Rao v. Saraswathi Bai' 52 Mys H. C. R. 400 (C) that there is no obligation on the part of the decree-holder to file a copy of the decree along with the application for transfer. The view expressed in -- '28 Mys CCR 191 (D)', that an application for transfer is detective till copy of the decree is filed and not in accordance with law till then is dissented from and is said to be not warranted by the facts of the case. Reference is also made in -- '52 Mys H C R 400 (C)' to the observation in an unreported case that

'A close examination of the facts of that case -- '28 Mys C C R 191 (D)' clearly shows that the learned Judges did not intend to lay down such a broad proposition.'

'28 Mys C C R 191 (D)' cannot, therefore, be regarded as laying down that in all cases the validity of an application for transfer depends on the production of copy of the decree and statements to that effect must be taken to be incorrect.

5. 'Narayana Setty v. Padmanabhiah', 54 Mys H C Rule 58 (E) has no bearing on the point as it deals with only the question of the transferee Court having jurisdiction to execute the decree if it has not returned copy of the decree. There is no need to discuss the soundness of this view as the Question for decision in the present case is altogether different. Learned counsel cited some cases in which the question as to which is the proper Court in which the application for execution is to be filed and jurisdiction of the Court which passed the decree to entertain an application for transfer when report of non-satisfaction is not received from the transferee Court, is dealt with. Referring to the important decisions touching the point Jai Lal J. in the course of the judgment of the Full Bench in -- 'Kanti Narain v. Madan Gopal' AIR 1935 Lah 465 (F) expresses

'According to these tests an application made to the Court which passed the decree to execute it or transfer it for execution even after the decree has already been transferred to another Court for execution must be held to be an application made to the proper court and to be in accordance with law as the Court is competent to grant the application in any case after obtaining a report under Section 41 from the other Court and 'a fortiori' is competent to receive or to entertain the application. The application does not cease to be in accordance with law merely because before acting upon it the Court ought to take some preliminary action i.e. obtain a report under Section 41, C. P. C. and it is not necessary that the decree-holder should expressly ask in the application that this should be done.'

Proceeding, the learned Judge remarked:

'The only objection to transfer the decree to the same Court for the second time before the result of the previous application is certified by it could be on the score of futility of such an application, but this has no bearing on the question of jurisdiction.'

6. In a recent case reported in -- 'Mohan Lal v. Benoy Kishna' : [1953]4SCR377 (G) Das J. has held that omission to send a copy of the decree or an omission to transmit to the Court executing the decree the certificate referred to in Order 21, Rule 6, C. P. C., does not prevent the decree holder from applying for execution to the Court to which the decree has been transmitted. In that case the validity of a sale held in the Court at Asansol in execution of a decree of Calcutta High Court was questioned on the ground that it has HO jurisdiction to execute the decree after a certificate under Section 41 was sent to the Calcutta Court which passed the decree. The learned Judge also held that no particular form for transmission of a decree is prescribed by the Code and that the Court can even 'suo 'motu' send the decree for execution to another Court. Ghulam Hasan J. applying the rule of constructive res judicata to execution proceedings held that failure of the judgment-debtor to object to the execution at earlier stages operated as a bar to raise any plea of want of jurisdiction.

7. The present, appellant cannot be said to have acted without delay as he failed to appear and put forward any objection either in Execution Case No. 1092/37-38 or Execution Case No. 849/40-41 in spite of his being served with notice. If, as contended, the decree is in executable for any reason it was up to the appellant to show that transfer of the decree sought for in these cases is unnecessary and a useless formality for an in fructuous proceeding. He stayed away as if there was nothing to be said against the transfer. A decree is transferred not as a matter of course but as a means of obtaining satisfaction and if the assistance of the Court cannot be had to this end, there is no meaning in mechanically passing an order of transfer or allowing it to be passed. As stated in -- : AIR1939Cal651 :

'The Court to which the application for transfer is made does not merely function as a post office but it has judicial duties to perform. It is required by statute to exercise judicial discretion. An objection raised by a judgment-debtor opposing the transfer will be an objection relating to execution of the decree. The words 'relating to execution of the decree' in Section 47 are wide enough to cover the case.'

Questions relating to executability of decree such as limitation can be raised and decided in the Court which passed the decree when transfer is applied for. (See -- 'Sreenath Chakravarti v. Priyanath' : AIR1931Cal312 . The words in Order 21, Rule 28, C. P. C. lend support to this view. The objection of the appellant on the score of limitation, report of non-satisfaction etc., are thus belated and untenable. The appeal is dismissed with costs.

Medapa, C.J.

8. I agree.

Mallappa, J.

9. I agree It has been laid down in -- '28 Mys C C R 191 (D)' that the limitation for an application for transfer depends upon the production of the copy of the decree. It was observed in that case:

'The decree-holder could not have obtained a transfer without the decrees copy filed; the application was till then a defective one, and only became an application in accordance with law when the copy was filed.'

' It is contended in this case that though the application for transfer of the decree was filed in time, it was not a valid application as the copy of the decree was filed after' the period of limitation. It is next urged that the transferring Court had no jurisdiction to receive any application for transfer as the decree copy sent along with the previous transfer proceedings had not been returned to that Court from the transferee Court. It is, therefore, of some importance to examine whether it is obligatory, for the decree-holder to file a copy of the decree for being sent to the transferee Court and whether the jurisdiction of any of the Courts is affected by the copy of the decree being not sent to the transferee Court or by the later Court not returning it.

10. Section 39, C. P. C. merely authorises the Court which passes the decree to send it for execution to another Court in certain cases. It does not say that the application for transfer should be accompanied by a copy of the decree. Order 21, Rule 6, C. P. C. states that the Court sending a decree for execution shall send a copy of the decree. But the omission to send a copy of the decree to the transferee Court does not prevent the decree-holder from applying to that Court for execution as as clear by the decision in -- 'Modali Ademma v. Venkata Subbayya' AIR 1933 Mad 627 (I). The reason, however, for sending a copy of the decree is stated in Order 21, Rule 7, C. P. C. According to it, a Court to which a decree is sent shall cause the copy to be filed without any further proof of the decree. It will thus be seen that sending of a decree copy is not an essential condition for the transferee Court having jurisdiction to execute the decree, and that is why it has been laid down by Das J. in -- : [1953]4SCR377 :

'That an omission to send a copy of the decree or an omission to transmit to the Court executing the decree the certificate referred to in Clause (b) of Order 21, Rule 6 does not prevent the decree-holder from applying for execution to the Court to which the decrees has been transmitted.'

Assuming, however, that it is essential for the transferring Court to send a copy of the decree to the transferee Court, nothing comes in the way of it getting a copy of the decree prepared and sending it to the transferee Court. As there is provision in Section 39, C. P. O. for a Court on its own motion sending a decree for execution to any subordinate Court of competent jurisdiction, it is clear that the law does not make it obligatory for a copy of the decree being filed by the decree-holder. The decision in -- '28 Mys C C R 191 (D)' that an application for transfer is only valid when a copy of the decree is filed is not followed in later decisions of our High court and it is to set at rest the conflict, if any, in the decisions of our Court that this case was referred for a decision by a Full Bench. The decision in -- '23 Mys C C R 191 (D)' that an application for transfer is defective when it is not accompanied by a decree copy is incorrect.

11. As regards the contention that the transferor Court's jurisdiction depends upon the decree copy being returned from the transferee Court, it is mainly based on an observation made in the case reported in --- '54 Mys C C R 58 (E)', that the jurisdiction of the transferee Court ceases when the copy of the decree is returned by that Court to the Court that transferred the decree, with a certificate of non-satisfaction. This observation is based on Section 41 which provides that the Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution or where the former Court fails to execute the same the circumstances attending such failure. It is. however, clear that Section 41, Civil P. C. does not refer to the transferee Court returning the copy of the decree, if any, sent to it. Moreover the decision of the Supreme Court referred to above lays down that it is possible for the transferee Court to execute the decree which is transferred though no copy of the decree has been sent to it. In such a case it cannot be conceived how the transferee Court could, be expected to return the copy of the decree. But it has been observed in -- '54 Mys C C B 58 at p. 68 (E)' that:

'What really puts an end to the jurisdiction of the transferee Court is the return of the decree copy to the Court that passed the decree as thereby the transfer proceedings come to an end. So long as the decree copy remains on the file of the transferee Court, the mere transmission of a certificate under Section 41, C. P. C. does not, in our opinion, put an end to the jurisdiction of the transferee Court.'

These observations, however, it has to be stated with great respect, were unnecessary for the decision of the case as in that case it could not be said that the decree copy remained on the file of the transferee Court and there was merely a transmission of a certificate under Section 41, C. P. C. It was a case in which the certificate under Section 41 had not also been sent. So the decision cannot be taken as an authority, at any rate, for the position that the transferring Court gets jurisdiction only alter it gets back a copy of the decree sent by it.

12. There are a number of decisions as regards the question whether the Court that transfers a decree loses its jurisdiction in respect of it. It would be sufficient, however, to refer to the commentary in Mulla's Civil Procedure Code on the point (page 173):

'After transferring a decree to another Court for execution, the Court which passed the decree cannot itself execute the decree; and an application for execution made to it after the transfer and before a certificate of non-satisfaction under Section 41 has been returned, is not even a step-in-aid of execution so as to save limitation. This is one view. The other view is that there is no justification for holding that the transferor Court cannot execute a decree after it is transferred to another Court; and that when the transferor Court transfers a decree, it does not invest itself of its power but only vesta the transferee Court with powers it would not otherwise have. The difference of opinion mainly turns on the construction placed on the judgment in -- 'Maharaja of Bobili v. Narasaraju' AIR 1916 PC 16 (J). But the Court which passed the decree does not altogether surrender control of the execution proceeding. It has power under Order 21, Rule 26, to make an order for stay of execution. It may withdraw execution by calling back the decree; or it may make an order for simultaneous execution by another Court; or it may make an order for rateable distribution. It has, moreover, jurisdiction to decide an objection as to limitation if referred to it by the transferee Court. If the decree is assigned after transfer, the assignee must apply for execution to the original Court. If after a decree has been transferred for execution the judgment debtor dies, the Court which passed the decree is by Section 50 the proper Court to order that execution should proceed against the legal representative. This is, however, merely a question of procedure and if the transferee Court makes the order, that would be only an irregularity which might be waived.'

As however rightly observed in the commentary on the Code of Civil Procedure by Chitaley and Annaji Rao on Section 38 while dealing with the decision of the Privy Council referred to above;

'The decision does not touch the question of the maintainability of simultaneous execution applications. On the strength of the said decision, it was, however, held in the undermentioned cases -- 'Jnanendra Nath v. Gogendra Na-rain Sinha' AIR 1923 Pat 384 (K); -- 'Muhammad Habibullah v. Tikamchand' AIR 1925 AH 276 (2) (L) etc. that simultaneous executions are not permissible in two Courts. It is submitted that the latter view is not correct. Their Lordships' observations in the Privy Council case, during the course of the argument, that the tendency of the Code is against concurrent executions, appear to have influenced the decisions of the High Court. But the observations must be taken to refer to concurrent executions against the same property.'

Considering that the Court that transfers a decree to another Court does not lose its control over the decree transferred by it and has in fact power to withdraw the decree, the contention that the transferring Court is not a proper Court for filing an application in respect of the decree is without substance.

13. The decision in -- 'Marutl Bansi v. Nanjappa Chetty' AIR 1942 Nag 63 (M) was relied on by the learned advocate for the judgment-debtors. It has been held in that case that:

'The Court which passes a decree does not lose its power to execute the decree after it transfers the decree to another Court for execution. Consequently, an application to the Court which passed the decree to recall it from the Court to which it was transferred by it for execution and to send it back there again would be an application made to the 'proper Court' within the meaning of Article 182(5) but such an application would in no way assist the execution and would therefore not be a step-in-aid of execution and hence would not save limitation under Article 182 (5).'

This decision follows the observations in -- 'Vish-wanath Singh v. Mahabir Prasad' AIR 1937 Nag 305 (N), though in that decision the point was left undecided. It was observed in that case:

'It is, however, desirable to warn litigants against wasting the time of Courts by useless applications (that is applications which if granted do nothing) merely to mark time and save limitation.'

In this case an application to transfer the decree was filed to the Court that passed the decree for transferring it to a Court in Mysore more than six months after the decree had previously been transferred to the latter Court. The rule of Practice contained in para. 246 of the Civil Rules of Practice and Circular Orders, Vol. I runs as follows:

'If after a decree has been sent to another Court for execution, the decree-holder does not, within six months from the date of transfer, apply for the execution thereof, the Court to which the decree has been sent shall certify the fact that no application for execution has been made to the Court which passed the decree and shall return the decree to that Court.'

14. It is contended in this case that in spite of this Rule of Practice no certificate was sent to the transferring Court though the decree-holder had not applied for the execution of the decree. Assuming that it is so, it is clear that the decree-holder could only have presumed that the transferring Court must have followed the Rule of Practice and sent a report under Section 41, C. P. C. along with the decree copy within six months' time after the decree was sent for execution as the decree-holder had not taken any steps within that time to execute the decree. If, therefore, under a bona fide belief that the decree had been sent back to the transferring Court he applies to that Court for transferring the execution case again, it cannot be said that the decree-holder is making a nominal application and he is attempting to gain time. It is not a case in which he wanted to recall the decree from the transferee Court and to send it again. If it were so it could have been said that he was aware of the transferee Court not having followed the Rules of Practice referred to above. Dealing with a case in which an application was made for a transfer of a decree to a Court which at that time had not the necessary jurisdiction, but shortly before that, had such jurisdiction, it was held in the case reported in -- 'Bishundeo Narain v. Raghunath Prasad' AIR 1940 Pat 677 (CO that the application was in accordance with law, and in that case Meredith J. observed as follows:

'What the rulings state is that the phrase 'made in accordance with law' does not include an application to the Court to do something which either from the decree-holder's direct knowledge in fact or from his presumed knowledge of law he must have known the Court was incompetent to do.'

15. In a similar case it was observed in --'Santhappa v. Siddalingayya Eswarappa' AIR 1939 Mad 378 (P):

'The mere fact that a decree-holder applies for transmission of his decree to a Court, which does not exist, but which he wrongly believes to exist does not prevent his application as being one in accordance with law, inasmuch as it is a mistake of fact and not one of law.'

There has been a conflict of decisions as to whether an application of this kind should be bona fide before it could be said to be a step-in-aid. But the conflict must be taken to have been set at rest by the decision of their Lordships of the Privy Council in -- 'Khalil-ur-Rahman Khan v Collector of Etah' that it was not necessary to be in accordance with law that it should have been made bona fide. The question arose for consideration in this Court in the case reported in -- 'Lingiah v. Naranappa', 54 Mys H C R 275 (R) as to whether an execution application filed against a deceased judgment-debtor under a bona fide belief that he is alive is a step-in-aid for purposes of limitation within the meaning of Article 182, Clause 5, Limitation Act. The observations in -- 'Gppal V. Raising' AIR 1934 Bom 266 (S) that:

'It is not easy to see why an application which fulfilled all the requirements of the law according to the information available to the judgment-creditor at the time it was made, should not be held to come within the article'

was followed as against the view in -- 'Madho Prasad v. Kesho Prasad', 19 All 337 (T). A large number of other decisions have been referred to in it including the decision reported in -- 'Mano-rath Das v. Ambiba Kant', 9 Cal L J 443 (U) where it has been observed:

' If an application for execution of a decree be made under the inference of a bona fide mistake against a dead person, though that application cannot be acted upon, still it is an application in aid of execution within the meaning of Article 179, Clause 4, Limitation Act, which saves the execution of the decree from being time-barred.'

16. In this case the decree-holder's application made to the Court which passed the decree for transferring the decree to the Munsif's Court at Mysore long after his first application for transfer, presuming bona fide that the latter Court must have sent back to the former Court the report under Section 41, Civil P. C. along with the decree copy, must therefore be held to be a step-in-aid. The contentions of the appellant cannot be upheld. I agree therefore that the appeal be dismissed with costs.

17. Appeal dismissed.


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