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Shimoga Oil Mills Vs. Sri Radhakrishna Oil Mills Kadiri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 15 of 1964
Judge
Reported inAIR1969AP263
ActsCode of Civil Procedure (CPC), 1908 - Sections 41; Limitation Act, 1908 - Schedule - Article 182
AppellantShimoga Oil Mills
RespondentSri Radhakrishna Oil Mills Kadiri and ors.
Appellant AdvocateR.V. Subbarao, Adv.
Respondent AdvocateA. Bhujangarao and ;A. Gopalarao, Advs.
Excerpt:
civil - transfer application - section 41 of code of civil procedure, 1908 and article 182 of limitation act, 1908 - petitioner filed execution petition - dismissed as no notice served on respondent before filing such petition - petitioner got case transferred to another court where properties of respondent situated to attach same in execution and filed second execution petition - second execution petition challenged as barred by limitation - second execution petition filed after period of three years - transfer proceedings does not save limitation period - as transfer does not constitutes steps in aid of execution of decree - held, second execution petition barred by limitation and dismissed. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj].....1. this appeal by the attaching decree-holder is preferred against the judgment of the district judge, anantapur in a. s. no. 139/61 holding that e. p. no. 77/60 on the file of the court of the subordinate judge, anantapur was not filed within three years after the previous execution petition and is therefore, barred by limitation. 2. it is necessary to narrate briefly the facts of the case. the o. s. 46 of 1947-48, filed by the shimoga oil mills in the court of the subordinate judge, shimoga, against sri radhakrishna oil mills, kadiri, the respondent herein, for the recovery of about rs. 3,257 was dismissed on june 30, 1949, but decreed by the high court of mysore in r. a. no. 81/1949-50 on october 30, 1951. as the judgment-debtors are residents of and having properties only at kadiri,.....
Judgment:

1. This appeal by the attaching decree-holder is preferred against the judgment of the District Judge, Anantapur in A. S. No. 139/61 holding that E. P. No. 77/60 on the file of the Court of the subordinate Judge, Anantapur was not filed within three years after the previous execution petition and is therefore, barred by limitation.

2. It is necessary to narrate briefly the facts of the case. The O. S. 46 of 1947-48, filed by the Shimoga Oil Mills in the Court of the subordinate Judge, Shimoga, against Sri Radhakrishna Oil Mills, Kadiri, the respondent herein, for the recovery of about Rs. 3,257 was dismissed on June 30, 1949, but decreed by the High Court of Mysore in R. A. No. 81/1949-50 on October 30, 1951. As the judgment-debtors are residents of and having properties only at Kadiri, situate within the jurisdiction of the Court of the subordinate Judge, Anantapur, the Shimoga Oil Mills, the decree-holder, obtained a transfer of the decree to the sub-court. Anantapur for execution. The E. P. 37/56 filed by the decree-holder, the Shimoga Oil Mills, was dismissed by the sub-court, Anantapur on October 25, 1956 holding that 'the decree-holder absent' The advocate reports no instructions.' A copy of the order in E. P. No. 37/56 despatched at Anantapur on October 30, 1956 has been received by the sub-court, Shimoga on November 2, 1956.

3. In the meanwhile, the appellant herein obtained a money decree in O. S. No. 224 of 1948-49 on the file of the Court of the District Munsif Shimoga on June 30, 1940, against the Shimoga Oil Mills, the decree-holder in O. S. No. 46 of 1947-48 sub-court, Shimoga, which was reversed in appeal in R. A. No. 52 of 1949-50 on March 24, 1950 but finally affirmed by the High Court of Mysore, in S. A. 78 of 1950-51 on July 21, 1953.

4. On January 15, 1958, the appellant herein filed E. P. 53/58 on the file of the district Munsif's Court, Shimoga for attachment of the decree in O. S. 46 of 1947-48 sub-court, Shimoga without any notice to the J. D. the respondent herein. On June 20, 1958, the District Munsif, Shimoga passed an order stating that 'attachment of decree duly served on civil Judge, Shimoga and the decree-holder is permitted to execute the attached decree as desired by him.' On July 16, 1958, the appellant herein filed E. P. 348/58 in the sub-court without notice to the respondent herein for transfer of the decree to the sub-court, Anantapur. The docket sheet discloses the endorsement of the sub-court, Shimoga made on July 18, 1958 thus:-

'In this case, the decree has already been transferred to sub-court, Anantapur in execution case No. 208/56 of this Court. Non-satisfaction report has been received in this Court on 2-11-56. Recall the transferred decree copy by 7/8' The decree copy was not received by 7-8-1958, 28-8-1958, 11-9-1958 and 9-10-1958, on which date the appellant was required to file a decree 30-10-1958. On November 13, 1958, the decree was ordered to be transferred. The Appellant filed a memo with a copy of the decree in S. A. 72/1950-51 on February 20, 1959 praying to send the same to the Court of the Subordinate Judge, Anantapur and the same was ordered. On September 3, 1960, the appellant-attaching decree-holder filed E. P. 77/1960 on the file of the Court of the Subordinate Judge, Anantapur for the execution of the decree in O. S. No. 46 of 1947-48 sub-Court Shimoga. The respondent herein resisted the application contending inter alia that E. P. 77/1960 being filed more than three years after the dismissal of the prior E. P. No. 37/1956, is barred by limitation and the attachment of the decree in O. S. No. 46/47-48 sub-court, Shimoga is not valid and binding on them, as no notice was issued to or served on them. The sub-court overruled the objections raised by the judgment-debtor and directed the execution proceedings. Aggrieved by the order of the sub-court, Anantapur, the respondent herein preferred an appeal to the District Judge, Anantapur, who allowed the appeal and dismissed the E. P. No. 77/1960 as barred by limitation. The appellant, aggrieved by the judgment and decree of the District Court, Anantapur, preferred this civil miscellaneous second appeal.

5. Mr. R. V. Subbarao, the learned counsel for the appellant, strenuously urged (1) that there is no prescribed form in which a certificate under Section 41, Civil P. C. will have to be sent by the transferee Court to the transferor Court and the information of the dismissal of the E. P. sent by the Anantapur sub-court on October 30, 1956 received by Shimoga sub-court on 2-11-1956 is sufficient to amount to a certificate within the meaning of Section 41. Civil P. C. and (2) that the application made by the appellant in E. P. No. 348/58 filed in the original Court praying for transfer of the decree to the sub-court. Anantapur for execution, wherein that Court passed an order recalling the transferred decree which would amount to a step in aid of execution and prevents limitation running against the decree-holder. Mr. A. Gopalarao, the learned counsel for the respondent contended contra.

6. The points that arise for determination are:-

(1) Whether on the facts and in the circumstances, the provisions of S. 41, C. P C. can be said to have been validly complied with?

(2) Whether the endorsement in Ext. A-8 to the effect that the non-satisfaction report was received on 2-11-1956 is true and valid?

(3) Whether the order passed by Shimoga Court in E. P. 348/58 ordering transfer of the decree from the Anantapur Court is a step in aid of execution and saves limitation?

7. Both the counsel represented that there is no direct case which is on all fours applicable to the facts of the present case and have cited a number of conflicting decisions decided on the facts of those cases.

8. Untrammelled by the said decisions, let me consider the legal position on first principles. The material provisions that have a bearing on the present controversy are Section 41 of the Code of Civil Procedure and Cl. 5 of Art. 182 of the Limitation Act, 1908. But it is useful and necessary to consider the provisions of Sections 38, 39, 40 and 42 of the Code of Civil Procedure. Under Section 38, of Civil P. C. a decree may be executed either by the Court which passed it or by the Court to which it has sent it for execution, By Section 39, Civil P. C. the original Court may, on the application of the decree-holder, send the decree for execution to another Court within whose jurisdiction the judgment-debtor resides or carries on business or has property. By Section 40, Civil P. C. if a decree is sent for execution in another State, it shall be executed in such a manner as may be prescribed by rules in force in that State, Section 41, Civil P. C. enjoins upon the transferee Court to certify to the transferor Court of the factum of execution, or where it fails to execute the decree, the circumstances attending such failure. Section 42, C. P C. empowers the transferee Court to execute the decree in such a manner as if the decree was passed by it. By Cl. 5 to Art. 182 of the Limitation Act, 1908, the period of limitation fixed for the execution of a decree is three years from the date of the final order passed on any application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree. The use of the words 'shall certify' is a pointer to the mandatory character of the provisions of the Section 41 of the Code of Civil Procedure. As the expressions 'certify' and 'fails' are not defined either in the Code on the General Clauses Act, it is proper to construe the same in the light of their plain ordinary grammatical meaning as given in the Dictionaries.

'To certify' means 'to guarantee as certain, attest in an authoritative manner, to give certain information of.' and 'certificate' means 'the action of certifying or guaranteeing the truth of anything, attestation' (Oxford English Dictionary).

'Certificate' means 'a written testimony to the truth of any fact.' (Webster's New International Dictionary).

'Certificate' means 'a writing by which an Officer or other person bears testimony that a fact has or has not taken place' (Bouvier).

'To certify' means 'make a declaration about in writing under hand, or hand and seal, to make attestation either in writing or orally as to the truth or excellence of something' (Standard Dictionary).

In Farmer v. Legg., (1797) 7 TR 190 at page 191, Lord Kenyon, Ch. J. observed that 'a certificate ex vi termini imports that the partly certifying knows the fact that he certifies.'

'Fail' means 'to be found wanting with respect to an action, a duty, an effect, etc. to miss' (New International Dictionary).

'Fail' means 'not to render the due or expected service of aid to disappoint, give no help to' (Oxford English dictionary)

'Fail' means 'to leave unperformed to omit' Bouvier L. Dict.'

9. It has to be considered whether mere information, without a regular non-satisfaction report or certificate under Section 41, P.C. would be sufficient compliance of the provisions of Section 41, Civil P. C. Mr. R. V. Subbarao cited the following authorities in support of his contention that there is no specific form to send the certificate and mere intimation to the transferor Court is sufficient compliance. Maniram v. Vithu, AIR 1923 Bom 371 Pratabgir v. Chandmal Dhuddha, AIR 1951 Hyd 65 Aftab Ahmad v. Hindustan Commercial Bank Ltd. Aminabad : AIR1960All558 Ramkumar v. Hazarimal ; Krishna Prosanna v. Sarojini Debi, AIR 1937 Cal 557 and Darsan Singh v. Baldeo Das, AIR 1946 Pat 365.

10. In AIR 1923 Bom 371 the transferee Court sold the properties and the sale price was paid to the decree-holders, the Darkhast was struck off and the copy of the decree was taken back by the decree-holders and the result of the exception proceedings was entered in the small cause suit register and when the plaintiffs sought again to execute the decree, the sub-court held that the decree had been adjusted. ON the facts of that case, the Bombay High Court held that no particular method was prescribed for certifying the fact of execution and if the transferee Court informs the transferor what has happened in execution, it is sufficient compliance.

11. In AIR 1951 Hyd 65, it was held that Section 258, Hyderabad Civil P. C. (corresponding to Section 41, Civil P. C. ) merely requires an intimation to the transferor Court but no particular form is necessary for such intimation. The word used in Section 258, Hyderabad Civil P. C. is 'intimate' and not 'certify' as in section 41, Civil P. C. Hence, that case has no application. In : AIR1960All558 , it was observed that 'the non-sending of the non-satisfaction certificate may be an irregularity, but it does not affect the right of the decree-holder to put in a second execution application.'

12. In , it was observed that there is no particular form for a certificate under Section 41 Civil P. C. and the information sent to the Court concerned about the result of the execution case, is sufficient to amount to a certificate within the meaning of Section 41 of the Civil P. C.

13. In AIR 1937 Cal 557, it was held that the decree-holders' filing a petition in the transferor Court for transfer of the decree to a third Court for execution, along with a certified copy of the order of dismissal passed by the transferee Court, was sufficient compliance with the requirements of Section 41, Civil P. C. In that case, the application filed before the transferor Court for permission to execute the decree in a third Court, would amount to a step in aid of execution and save limitation.

14. The observation made by Meredith J. in AIR 1946 Patna 365 that Section 41 prescribes no particular form of the certificate and an intimation by the transferee Court of the dismissal of the execution petition was sufficient, is held to be an obiter in Savitri Devi v. Kamal Singh, AIR 1955 Patna 456 and Prahalad Prasad Mahrotra v. Thakur Prasad Mehra and Co., AIR 1961 Patna 149. In AIR 195 Patna 456, a Division Bench of the Patna High Court has no power to issue a certificate under Section 41, Civil P. C. during the pendency of the second execution case and that the certificate prepared by the office, purported to have been sent under Section 41, Civil P. C. to the transferor Court, was invalid and without jurisdiction, as there was no order passed by the transferee Court, after applying its mind, to the effect that a certificate under Section 41, P.C. should be issued and sent to the transferee Court.

15. In : AIR1961Pat149 a decree transferred from the Calcutta High Court passed in Ordinary Original Civil Jurisdiction was transferred to the Muzaffarpur Court for execution on August 24, 1955. On February 24, 1956, a notice was issued by the transferee Court under O. 21, R. 52. Civil P. C. and the execution case was dismissed for default on March 15, 1956. On January 15, 1957, the decree-holder again applied to the transferee Court for execution of the decree which was sought to be rejected by the judgment-debtor on the ground that the Muzaffarpur Court (transferee Court) had no jurisdiction to execute the decree. as it had communicated the result of the previous execution to the transferor Court (the Calcutta High Court) on March 16, 1956. In other words, it was contended that the communication of the result of dismissal of the E. P. on March 15, 1956 by the transferee Court amounted to a certificate under Section 41 of the Code of Civil Procedure and hence it ceased to have any further jurisdiction to entertain the fresh application. The learned Judges held that as it did not appear from the Order that any such certificate was in fact prepared or signed by the transferee Court and sent to the Calcutta High Court, the provisions of Section 41 of the Civil P. C. have not been satisfied and the transferee Court had jurisdiction to proceed with the execution case. It was further held that the act of sending the certificate under Section 41 of the Civil P. C. was something in the nature of a judicial act and it requires the transferee Court to apply it s mind judicially and pass a formal under to that effect.

16. To sum up: -

(1) The certificate contemplated by Section 41 of the Civil P. C. requires the transferee Court to apply its mind and affirm the statement of fact that the execution was made or could not be done successfully after making every bona fide effort and the circumstances for its failure to execute the decree. The failure contemplated under Section 41, Civil P. C. is a failure after bona fide effort but not due to any negligence or omission to perform this duty.

(2) The expressions 'certify' and 'fails' in Section 41 of the Civil P. C. are not defined either in the Code or under the General Clauses Act. The ordinary grammatical meaning given in the Dictionaries would afford a safe and useful guide to construe the aforesaid expressions.

(3) The expression 'certify' means 'to make a declaration in writing under hand or hand and seal: to make attestation in writing as to the truth of the facts or the result of the execution proceedings in the transferee Court and the circumstances thereof. If the execution was over, the transferee Court should certify that the decree was executed and if it is fails to execute, it should certify its failure to execute the decree and the circumstances thereof. If the execution was over, the transferee Court should certify that the decree was executed and if it fails to execute, it should certify its failure to execute the decree and the circumstances attending such failure. and the transferee Court must know that it was issuing a certificate to that effect to the transferor Court.

(4) The provisions of Section 41 of the Civil P. C. are mandatory but not discretionary or directory and the transferee Court has to strictly adhere to the same.

(5) The expression 'shall certify' in Section 41. Civil P. C. but not 'intimate' as in Section 250, Hyderabad Civil P. C. contemplates the action of the transferee Court in this regard to be one of judicial nature but not of administrative character, and as such, the Court has to apply its mind to the facts and circumstances of each case and pass an order to the effect that such a certificate be issued and sent to the transferor Court, as disclosed from the records of the execution proceedings.

(6) The mere sending of a copy of the order dismissing the execution petition by the transferee Court to the original Court. which passed the decree, without a non-satisfaction report and the original decree, does not amount to sufficient compliance of the provisions of Section 41 of the Civil P. C.

(7) There is no particular form of certificate prescribed either by the Code or any rule made thereunder, but the certificate, whatever the form may be, affirming the statement of true facts relating to the result of the execution proceedings by the transferee court, should be issued, after applying its mind. and sent to the original Court along with the decree.

17. Applying the aforesaid principles, let me consider as to whether the requisite under Section 41 has been issued by the Anantapur sub-Court to the original Court, the Shimoga Court, in the instant case. It is proper and necessary to consider at this stage as to whether the endorsement Ex. A-8 to the effect that the non-satisfaction report was received by the transferor Court is true and valid. Admittedly, the E. P. records do not disclose either the passing of any order by the sub-Court, Anantapur to issue a certificate under Section 41 Civil P. C. and send the same to the transferor Court, nor any such certificate, whatever the form may be, was issued and sent by the Anantapur sub-court to the transferee Court, i.e., sub-court, Shimoga, Evidently the sending of the copy of the dismissal of the E. P. 37/56 dated October 25, 1956 and despatched at Anantapur on October 30, 1956 which was received by Shimoga Court on November, 2, 1956, appears to have been assumed by the transferor Court as a certificate, purported to have been sent under Section 41 of the Civil P. C. In this regard, even the order of the subordinate Judge, Anantapur is to the effect that there is nothing to show that the decree transferred to Shimoga Court. On a consideration of the entire material on record, I am clearly of opinion that the endorsement in Ex, A-8 to the effect that non-satisfaction report had been sent by the sub-court, Anantapur is not borne out by the records and it is an obvious mistake of fact.

18. In the present case, admittedly no order has been passed by the Anantapur sub-court, the transferee Court, to issue a certificate under Section 41, Civil P. C. and send the same to the transferor Court, i.e., the Shimoga sub-court. The mere sending a copy of the order dismissing the E. P. 37/56 on October 25, 1956 which was received by the sub-court, Shimoga on November 2, 1956 does not amount to a non-satisfaction report within the meaning of S. 41, C. P C. That apart, except the sending a copy of the order passed on October 25, 1956, there was not even a formal communication from the transferee Court to the Shimoga Court to the effect that the execution proceedings could not be proceeded as contemplated by Section 41, Civil P. C. nor the original decree sent for execution was returned by the transferee Court. Hence, in the circumstances and for the reasons stated above, I have no hesitation to hold that the mere sending a copy of the order passed by the transferee Court in October, 25, 1956 does not amount to sufficient compliance of sending a non-satisfaction report and certificate within the meaning of Section 41, Civil P. C.

19. Mr. Subbarao argued that before the receipt of the non-satisfaction report under Section 41, Civil P. C. from the transferee Court, the transferor Court still remains control of execution proceedings and hence, the filing of E. P. 348/58 in that Court for transfer of the decree to the Anantapur sub-court and the order passed thereon recalling the decree would amount to a step in aid of execution of the decree and prevents limitation running against the judgment-debtor and cited the following decisions in support of his contention.:-

P. Subba Rao v. Ankamma, AIR 1933 Mad 110: Muthu Rama v. Motilal Daga, AIR 1938 Mad 113: Nagi Reddi v. Kotamma, AIR 1947 Mad 431; Venkatarami Reddi v. Rami Reddi, : AIR1950Mad582 : Dwarkadas Gobindram. Firm v. Saligram Rekhrai Firm. AIR 1939 Pat 144: Radheshyam v. Devendra, : AIR1952Pat213 : Chandmal v. Pratapgirji, AIR 1958 Andh Pra 655; Venkatachalam and Co. v. Gordon Woodroffe and Co., (1966) 2 Andh WR 13 and Kandasami Chettiar v. Gokuldas Madanji and Co., Tuticorin, (1941) 1 Mad LJ 837.

20. In AIR 1933 Mad 110, it was held that there is no necessity for the transferor Court to await the receipt of certificates under Section 41 of the Civil P. C. and the return of records from the transferee Court to entertain the assignee decree-holder's application for recognition of his assignment.

21. In AIR 1938 Mad 113, it was held that there is nothing in the Civil P. C. to prevent simultaneous execution of a decree in more than one Court, and the original Court. which passes the decree, still retains control of execution proceedings. In that case, subsequent to the transfer of the decree to another Court for execution. the application filed by the decree-holder in the original Court to transfer the decree to a third Court for execution as there were some properties within the jurisdiction of the third Court, was ordered and it was held to be an application made to the proper Court and it amounts to a step in aid of execution within the meaning of Art. 182, Limitation Act.

22. In AIR 1947 Mad 431 a Division Bench of the Madras High Court held that an application made to the original Court, which passed the decree for an order retransferring the decree which was sent for execution to another Court, is a step in aid of execution and prevents limitation running against the decree-holder. In that case, it was further held that it is the transferee Court that retains the jurisdiction to execute the decree till it certifies under Section 41, Civil P. C. to the original Court, the fact of execution or if it fails to execute the decree, the circumstances attending such failure and in such a case, the transferor Court has no jurisdiction to entertain an application for execution.

23. In AIR 1950 Mad Panchapakesa Ayyar, J. held that the original Court that passed the decree can, despite its having transferred it for execution to another Court and not having received it back with a non-satisfaction certificate, entertain an application by the decree-holder for transfer of the decree to a third Court. In that case, permission for simultaneous execution in the third Court was granted. Admittedly having jurisdiction over some of the properties of the judgment-debtor in that case situated within the jurisdiction of the third court as well as the Court to which the decree was originally transferred. The application filed in the original Court for simultaneous execution in the third Court and the order passed thereon was held to be a step in aid of execution and save limitation.

24. In AIR 1939 Pat 144, it was observed that the transferor Court does not, by virtue of its transferring the decree, altogether lose the control over the decree but may still have jurisdiction to pass certain orders such as to recall the execution proceedings from the transferee Court. In the same case, it was ruled by Fazl Ali, J. at page 145 that the definition of 'proper Court.' as given in Explanation 2 of Art. 182, is not wide enough to include the transferor Court which has already transferred the decree for execution to another Court.

25. In : AIR1952Pat213 , a Full Bench of the Patna High Court held that the transferee Court, to which a decree has been transferred for execution from the original Court, retains its jurisdiction to execute the decree, until it seeds a certificate under Section 41, Civil P. C. and that the transferor Court still retains jurisdiction to execute the decree except to the extent that jurisdiction to execute the decree has been given to the transferee Court. Hence, this case does not render any assistance to the contention of the appellant, but on the other hand, it supports the plea of the respondent.

26. The decision in AIR 1958 Andh Pra 655 has no application to the present case, as the provisions of S. 250, Hyderabad Civil P. C. would show that the execution proceedings can be taken at the same time in due course.

27. In (1966) 2 Andh WR 13, Gopalakrishnan Nair, J. held that by merely transferring a decree to another Court, the original Court, which passed the decree, did not deprive itself of the powers and jurisdiction to pass an order allowing the application for making the compromise between the decree-holder and the judgment-debtor and that it would continue to be a proper Court for purposes of Art. 182 (5) of the Limitation Act, In that case the decree in C. S. No. 1073 of 1949 passed by the City Civil Court , Madras on November 7, 1950 was transmitted for execution to the sub-court, Kakinada on January 9, 1953. While the execution was thus pending, the decree-holder and the judgment. debtor entered into a compromise and requested for time and eventually the E. P. was adjourned. The application C. M. P. No. 1862/63 filed on December, 12, 1953 before the Madras City Civil Court for making the compromise between the parties was allowed in the presence of both the decree-holder and the judgment-debtor. The compromise decree was subsequently sought to be transferred for execution to the sub-Court, Kakinada on September 30, 1954. The E. P. No. 433 of 1958 filed by the decree-holder on September 11, 1957 in the Court of the subordinate Judge. Kakinada was held to be within the period of limitation, as it was filed within three years from the date of the final order in the City Civil Court, Madras on September 30, 1954. IN those circumstances Gopalakrishnan Nair, J. held that the City Civil Court, Madras was the proper Court within the meaning of Art. 182(5) of the Limitation Act to pass the final order relating to the execution of the decree. That case has no application and is distinguishable from the facts of the present case. the original Court which passed the decree was the proper Court to pass the compromise decree which was sought to be executed. That apart, the bench decision of our High Court in Suryanarayana v. Bhavanishankaram, (1960) 1 Andh WR 260 though earlier was not brought to the notice of the learned Judge, which I will deal with later on.

28. In (1941) 1 Mad LJ 837 = (AIR 1941 Mad 731) a Division Bench of the Madras High Court held that the Court, which transmits the decree for execution to another Court does not divest itself of its jurisdiction and has jurisdiction to take certain measures in execution. In that case, the original Court that passed the decree, passed an order transmitting the decree to another Court on August 30, 1932. The application filed in February, 1935 for transferring the decree to Bombay for execution was disposed of on February 27 returning the application. The petition was represented in March 1937. In those circumstances, the application filed by the original Court was held to be a valid application and that was filed within three years from the date of the final order, i.e., 30th August, 1932 by the proper Court. This case also is not helpful to the appellant herein. In Abda Begam v. Muzaffar Husan Khan., (1897) ILR 20 All 129, a Division Bench of the Allahabad High Court held that the mere striking off of an application for execution by the transferee Court on the ground of informality in the execution application filed in the transferee Court did not terminate the jurisdiction of that Court to execute the decree, nor render it necessary for the Court to send any certificate under Section 223, Civil P. C. , corresponding to Section 41 in the present Act to the transferor Court. Their Lordships at page 131 ruled thus:-

'In our opinion the Court to which a decree is sent for execution retains its jurisdiction to execute the decree until the execution has been withdrawn from it, or until it has fully executed the decree and had certified that fact to the Court which sent the decree, or has executed it so far as that Court has been able to execute it within its jurisdiction and has certified that fact to the Court which sent the decree. Now the Legislature, when it used the words 'fails to execute' in Section 223 of the Code, could not have meant that a Court which merely strikes off an application on the ground of informality thereby fails to execute the decree. 'Fails' must signify a failure after a serious and bonafide attempt by the Court to execute the decree.'

29. In Maharajah of Bobbili v. Narasaraju, AIR 1916 PC 16, a decree obtained in the District Court, Visakhapatnam was transferred for execution on September 13, 1904 to the Court of the District Munsif, Paravatipur, within whose jurisdiction the properties of the judgment-debtor are situate. Attachment of immovable property of the judgment-debtor was made by the Munsif's Court, Paravatipur. Subsequently an E. P. was dismissed on March 10, 1905. An application was filed on 13th December, 1907 by the decree-holder before the District Judge for selling the properties which were attached by the District Munsif's Court. Parvatipur in March, 1905. Again on April 27, 1910, the application by the decree-holder for bringing the attached property to sale was also dismissed. The Privy Council held that the application filed on December 13, 1907 and on April 3, 1910 before the District Judge. Visakhapatnam, were not filed in the proper Court s the non-satisfaction certificate was received only on August 3, 1910. Hence until the non-satisfaction report is received from the transferee Court. the transferor Court cannot be considered to be the proper Court within the meaning of Art. 182 of the Limitation Act, 1908 to execute the decree and any application filed in that Court that purpose will not save limitation running against the decree-holder.

30. In Vithu Daulaga v. Ganesh, AIR 1923 Bom 396, a Division Bench of the Bombay High Court ruled thus:

'It is only when the Court to which decree is sent has executed it, or has failed to execute it, that Court is bound to send a certificate under Section 41. It seems it was intended that there should be complete failure such as would result in no benefit to the judgment creditor for one reason or another, and not merely a partial failure.'

31. In Suryanarayana v. Bhavanisankaram, (1960) 1 Andh WR 260 a Division Bench of our High Court has held that Section 41 of the Code of Civil Procedure makes it obligatory on the executing Court (transferee Court) to certify to the original Court, the result of the proceedings before it and the jurisdiction of the transferee Court continues until a copy of the decree together with the full satisfaction or non-satisfaction report is returned. In that case, the dismissal of the E. P. in the transferee Court without a regular certificate being sent under Section 41, Civil P. C. was held to be and sufficient compliance with the provisions of Section 41, Civil P. C.

32. In short:-

(1) By Cl. 5 of Art. 182 of the Limitation Act, 1908, the period of limitation for execution of a decree is three years from the date of the final order passed on an application made in accordance with the law to the proper Court for execution or to take some step in aid of execution of the decree.

(2) The transferee Court has exclusive jurisdiction to execute the decree transferred to it by the original Court, to the extent of the properties situate within its limits and jurisdiction, until and unless it issues and sends the non-satisfaction report and the original decree to the transferor Court, as contemplated by Section 41, Civil P. C.

(3) That Court to execute the decree to the extent and in respect of the properties within its jurisdiction, is the proper Court within the meaning of Art. 182 of the Limitation Act, 1908.

(4) The original Court, which passed the decree, after transferring the decree for execution to another Court, has still the assignment and attachment of the decree and for simultaneous execution in a third or fourth Court in respect of the properties situate within their respective jurisdictions.

(5) The Original Court has no jurisdiction either to entertain any application or pass any order relating to the execution proceedings in respect of the properties, situate within the jurisdictional limits of the transferee Court, t which the decree was already transferred for execution. until the non-satisfaction report (certificate) along with the decree and the records are received back from the transferee Court, as that Court cannot be termed as 'proper Court' within the meaning of Cl. 5 of Art. 182 of the Limitation Act, 1908, and the application of that type or the orders passed thereon by the original Court will not amount to steps in aid of execution of the decree to save limitation running against the decree-holder.

(6) The application for simultaneous execution in a third or fourth Court in respect of some other properties situate within the respective jurisdictions of those Courts, or in execution proceedings simultaneously ordered to be taken in the original Court in respect of the properties situate within the jurisdiction of that Court, would certainly amount to steps in aid of execution and save limitation running against the decree-holder.

33. Let me apply the principles of law referred to above to the facts of the present case. Admittedly, the only properties owned and possessed by the judgment-debtor herein, are situate within the jurisdiction of the Court of subordinate Judge, Anantapur and there are no other properties belonging to the judgment-debtor situate either within the jurisdiction of Shimoga Court that passed the decree or any other Court. The proper Court within the meaning of Article 182 of the Limitation Act, in so far as the execution of the decree relating to the properties situate within the limits of the Court of the subordinate Judge, Anantapur is concerned is only the sub-court, Anantapur and no other Court. The last E. P. that was dismissed in that Court was on October, 25, 1956 and the present E. P. filed in the year 1960 is admittedly beyond three years. The application E. P. 348/58 filed without notice to the Judgment-debtor the respondent herein in the Court of the subordinate Judge, Shimoga is only for the transfer of the decree to the sub-court. Anantapur and though the order passed thereon appears to be for recalling the decree. It will not save limitation, as the same would not amount to a step in aid of execution of the decree. As it is found that no certificate as contemplated by Section 41, Civil P. C. has been either issued or sent by the Anantapur sub-court to the Shimoga Court, the original Court is not the proper Court to entertain the application for transfer of the decree to the Anantapur sub-court for execution in respect of the properties in Kadiri, Anantapur. The decree was already transferred and the sub-court Anantapur has seisin of the matter and the application before the sub-court, Anantapur could have been filed by the attaching decree-holder and the execution proceedings could have been continued by filing an application within three years from October 25, 1956. Though the sub-court, Shimoga has jurisdiction to entertain certain applications, the filing of the E. P. 348/58 and the order passed thereon do not amount to a step in aid of execution of the decree and save limitation.

34. In the circumstances and for the reasons stated above, I have no hesitation to hold that the order of the Court below is correct and there is no error of law or jurisdiction. In the result, this Civil Miscellaneous Second appeal fails and is dismissed with costs. No leave.

35. Appeal dismissed.


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