Venkatreswara Rao, J.
1. The only point that arises for determination in this appeal, which has come before this Bench on a reference made by one of us sitting alone inview of the importance of the question involved, is whether an order dated 5-8-1955 made by Tendolakr, J. sitting on the original side of the Bombay High Court in an application for execution filed by the decree-holder in suit No. 179 of 1943 dated 1-6-1955 would operate to serve as a reviour of the decree within the meaning of Art. 183 of the Indian Limitation Act,. 1908.
2. A brief statement of the facts giving rise to the appeal is necessary to appreciate the contentions urged by the parties to this proceedings. The appellant obtained money decree against the respondent in Suit No. 1-61-1955, he made an application to that court for 'execution' as can be seen from the certified copy of the minutes of execution, market as Ex. 49 in the court below. Notice under O. 21, R. 22, Civil P. C. was ordered on this application to the judgment-debtor on 29-6-1955. As neither the judgment-debtor nor anyone duly asuthorised by him chose to appear before that court on the appointed day, the learned judge called the judgment-debtor absent and made the notice absolute on 5-8-1955. The decree-holder thereafter filled E.P. 4/3 of 1956 in the court of the Second Additional Judge, City Civil Court, Hyderabad for execution of the decree, on 20-1-1956 by which time the copy of the decree appears to have been received by that court having been transferred to it. The judgment -debtor raised a preliminary objection to the maintainability of the execution petition on the ground that the court below had no jurisdiction to the execute the decree. This objection was upheld by the learned Subordinate Judge but a Full Bench of this High Court reversed that decision in the appeal which the decree-holder preferred. The decree-holder later on made another application E.P. 10/61 for execution on 9-2-1961 but it was dismissed for default on 4-7-1961. Subsequently, he applied to the same court in E.P. 22/63 out of which this appeal has arisen, for execution of the decree by attachment and sale of properties belonging to the judgment-debtor. This application was resisted by the latter on the ground that the decree is barred by limitation. On a consideration of the authorities cited and the contentions urged before him the learned Judge concluded that though notice under Order 21, Rule 22 was issued to be judgment-debtor in the application made by the decree-holder on the original side in the Bombay High Court and that notice was subsequently made absolute after service on the judgment-debtor, there was no judicial determination by that court that the decree is subsisting and that the decree-holder has a right to enforce the same and that in this view E.P 22/63 filed beyond 12 years from the date of the decree, is barred by limitation. He accordingly dismissed the execution petition. Hence this appeal by the decree-holder as, according to the learned counsel, Sri Sitaramaradei, the court below erred in its conclusion that there was no judicial determination that the decree sought to be executed is subsisting and that the decree-holder has a right to enforce the same notwithstanding that the order dated 5-8-1955 was made by the learned Judge of the Bombay High Court sitting on the original side and that, after issuing notice to the judgment-debtor under O. 21, R.22, Civil P.C. It is on the other hand urged by Sri Sivarama Sastri for the judgment debtor that the order sought to be relied upon for the purpose of saying the application form the bar of limitation imposed by Art. 183 is one that was made for the purpose of transferring the decree to the courts in Hyderabad for execution and not for issuing execution itself and that such an application, even when ordered after notice to the judgment-debtor, does not operate to serve as a revivour of the decree. So, as already stated, the only question that arises for consideration is as to whether the order dated 5-8-1955 operates as a revivor of the decree within the meaning of Article 183 of the Limitation Act. 1908.
3. Article 183 of the Limitation Act of 1908 governs the case for the purpose of limitation as the decree sought to be executed was admittedly made by the Bombay High Court on its original side. The period limitation prescribed by this Article for enforcing a judgment, decree or order of any court established by Royal Charter in the exercise of its ordinary original civil jurisdiction, or an order of the Supreme Court is 12 years when a present right to enforce the judgment , decree or order accrues to some persons capable of releasing the right. The proviso contained in column 3 of the Article, in so far as it is relevant for our purpose lays down that when the judgment decree or order has been revived, the period of 12 years mentioned in Column 2 shall be computed from the date of such revivor. It is therefore, necessary to examine if the order dated 5-8-1955 relied upon for the appellant would constitute a reviour of the decree within the meaning of this Article . It would be useful to refer to the decisions cited in support of the respective contentions before reaching a conclusion on the point in issue between the parties.
4. The question as to what would a Division Bench of the Madras High Court in Ganapathi v. Balasundra, (1884) ILR 7 Mad 540 and it was held that notice to show cause, which the Code requires after on year, has precisely the same effect of reviving a judgment which the old writ of Scire Facias had. It was pointed out in Krishnayya v. Gajendra Nadiu, AIR 1918 Mad 513 that both the the reason of the thinking and on the analogy of the provisions of the Civil P.C. which apply the doctrine of revivor to India, ass regards the revivor of the decrees of the High Court, original side, notice must go to the parties against whom it is sought to revive the decree-Palaniappa v. Valliammai, AIR 1929 Mad 252 (2) is a case in which, after notice to the judgment-debtors, the Deputy registrar of the composite Madras High Court made an order recognising the transfer of the decree in favour of the applicant before him and also directed that the decree he transferred to the District, Court, Remand for the purpose of enabling the petitioner to take out execution. The question then arose as to whether the aforesaid order of the deputy Registrar constituted a revivor within the meaning of Art. 183 of the limitation Act. Speaking for the court, Coutts-Trooter, C.J. formulated the question for decision as follows:
'Was the order of the Deputy Registrar of the 8th March 1917 a ministerial order or was it a judicial determination in so far as it no merely transmitted the case for execution to remand but purported to reconvene the position of the alleged transferee decree-holder.'
He held that the order transferring the decree for execution to another court does not give a new starting point of Limitation Qua order of transmission, relying upon Banku Behari Chatterjee v. Naraindas Datt, AIR 1927 PC 73 and on the other question he ruled, though luctantly, that when a court in has recognised the assignment of a decree and passed an order allowing the assignee to execute it that gives a fresh starting point of limitation and it is not open to the judgment -debtor to contend that it did not act as a revivour. Though the order recognizing the assignment of the decree as well as directing court for the purpose of execution was made by the Deputy Registrar, himself, the learned Chief Justice, after an exhaustive review of the entire case law on the subject, held that the former order, was a judicial determination in view of the trend of authority as the Deputy Registrar. though he was an officer of the court, purported to affix to this order, a statement that it was 'by the court.' On the other question viz., whether the order directing transfer of the decree to another court for execution would also have the effect of reviving the decree his answer was in the negative for the reason already stated.
5. Learned counsel for the appellant before us tried to say that the reason behind this decision of the madras High Court in AIR 1929 Mad 252 (2) is that the order directing transfer of the decree was made by an officer of the court and is therefore a ministerial order and could not consequently be construed as one involving a judicial determination that the decree was still capable of execution. But we are afraid that the reasons given by the learned Chief Justice do not warrant such a contention. There is nothing in Section 39 of the Code of Civil Procedure, which provides for transfer of a decree by the Court making it to another court for the purpose of execution. enjoining upon that court to issue notice to the judgment debtor before granting the decree-holder's request for transfer of the decree. In fact sub-section (2) of the section lays down that the court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction, thus making it clear that no notice to the judgment debtor is necessary before transferring the decree for execution. to another court. There would, therefore, be normally no occasion for the court directing transfer of a decree to another court to bring its judicial mind to bear upon the question as to whether the decree is still extent and continues to be capable of execution. The mere fact that an application for transfer of the decree is made in the same from that is prescribed for making an application for execution by attachment and sale of properties belonging to the judgment debtor or the like, or that a notice under O.21, R. 22 is issued to the judgment debtor before making an order on the application notwithstanding that no such notice is contemplated by Sec. 39 of the Code would not make any difference so far as the nature of the order directing transfer of the decree is concerned and it continues to be one that is made without the need to go into the question as to whether or not the decree continues to be capable of execution . May be that any determination of such a question in an application made for transfer alone of the decree, after hearing the parties in the event of the judgment-debtor putting an appearance in response to the notice issued to him under O. 21, R. 22 Civil P.C. operates to serve as constructive res judicata in a subsequent application; but this circumstance by itself is not sufficient to justify the contention that the order directing transfer of the when once it is made after issuing notice to the judgment debtor under O. 21, R. 22, Civil P. C. would necessarily involve a judicial determination that the decree continues to be capable of execution and such an order would therefore, constitute a revivor within the meaning of Art. 183 of the Limitation Act. That this is the correct legal position has also been indicated by a Full Bench of the Calcutta High Court in the decision in Chutterput Singh v. Sait Sumari Mal. AIR 1916 Cal 448(FB), it was pointed out by their Lordships:
'To constitute a revivour of a decree within the meaning of Art. 183 of the Limitation Act, there must be expressly or by implication, a declaration by the duly qualified court of person that the decree is still capable of execution and the decree-holder is entitled to enforce it.'
xx xx xx An application under Sections 223 and 224, Civil P. C., 1882, for the transmission of a certified copy of a decree, taken with an order thereon that the application should be granted, does not constitute a revivour of the decree within the meaning of Art. 183 of the Limitation Act.
xx xx xx The fact that the application was written upon a firm which is applicable to an application under Section 235, Civil P.C. 182, does not make it an application in execution nor constitutes the order thereon a 'rivivor'.
xx xx xx Sections 248 and 249, Civil P.C 1882 have no relation to an application for transmission of a copy of a decree under Section 223 of the Code. Therefore, a notice issued in the first instance upon the judgment-debtor on a application for transmission taken with the final order for transmission cannot operates a 'rivivor' within the meaning of Art. 183 of the Limitation Act.
xx xx xx The Registrar of High Court has no jurisdiction to adjudicate upon any matter, such as limitation, with reference to the question whether a decree is capable of execution; such a question is to be decided by the court itself under Section 249, Civil P. C. of 1882.'
6. The same view was expressed in Ram Krishna v. Ratan Chand, : AIR1956All32 also.
7. The principles that, therefore, emerge from the decisions referred to above are that in order to constitute a revivour within the meaning of Art. 183 of the Limitation Act, there must be an application for execution followed by a determination, either expressly or by necessary implication, after notice to the judgment-debtor, that the decree is still subsisting and the decree-holder has a right to enforce it. It may also be mentioned in passing that a mere notice under O. 21, R. 22 Civil P. C. on an application in which nothing is stated as to the manner in which the assistance of the court is sought for the purpose of taking out execution and on the basis of which the decree is ordered to be transferred to a different court for the purpose of execution would not operate to serve as a revivor as there would be no occasion in such cases for a judicial determination of the question as to whether or not the decree continues to be extent.
8. We will now proceed to examine if the order dated 5-8-1955 would constitute 'revivor' bearing the aforesaid principles in mind. The application which the decree-holder made to the Bombay High Court on its original side on 1-6-1955 and the certified copy of the minutes of execution whereof is Ex. A9 is unfortunately not before us and the decree-holder appellants has not been able to place it before us in spite of the time granted to him for the purpose. But it can be seem for Ex. A9 that the application was made for execution and not for transfer or transmission of the decree to the courts in Hyderabad. The full text of the order passed in that application has since been made available to us and it is to the following effect:
'Upon reading the notice under Order 21, Rule 22 of the Code of Civil Procedure dated 29th June 195 addressed to the defendants and upon hearing Mr. G. B. Pandya Attorney for the plaintiff and upon the defendants being called and not appearing either in person or by advocate and upon proof of service of the said notice upon the defendants I do order that the said notice be and it is hereby made absolute and that the plaintiffs be and they are hereby at liberty to execute the decree herein dated 8th September 1943 against the defendants, and I do lastly order that this order be filed on or before the 10th of September 1955'
9. The fact that there is nothing in this order pointing the interference that the assistance which the decree-holder sought from the court for the purpose of taking out execution, was transfer of the decree to the court in Hyderabads seems to Prima Facie establish his contention that he made the application dated 1-6-1955 on the original side of the Bombay High Court for some substantive relief and not for transfer of the decrees, as otherwise the text of the order should contain something suggesting that it was at learnt one of the releifs that was sought and granted to the decree-holder. The burden of proving that the application for execution is in time, no doubt, rests upon the decree holder; but we are of the opinion that the absence of anything in the order referred to above suggesting that the application dated 1-6-1955 was made for transfer of the decree. coupled with the fact that it was described as one for execution are sufficient to prima facie establish that the order dated 5-8-1955 was obtained on an application for execution and not one for transmission or transfer of the decree.
10. Learned counsel for the respondent referred us to the execution petition filed by the decree-holder in which column 6, providing for making mention of the previous applications,. if any for execution with the date and result, is left blank to say the application dated 1-6-1955 to the Bombay High Court should have necessarily been one for transfer of the decree and not for execution. But a note appended at the end of the self same execution petition would reveal that the decree was transferred to the District and Sessions Court, Hyderabad, as requested by the decree-holder, on 10th November 1955 implying that the application for transfer was made some time after the date on which the order dated 5-8-1955 was made Reference may also be made in this context to an affidavit of Sri G. B. Pandya, Solicitor, Bombay. He stated in paragraph 14 of this affidavit that on 11th November 1955, he applied to the court to transmit the decree to Hyderabad for taking out execution against the defendant. This statement would establish beyond doubt that the decree was transferred to the court below on an application made for the purpose in November 1955 and that the application dated 1-6-1955 was not one for transfer of the decree. We cannot, therefore, permit the respondent, to take advantage of the fact that column 6 of the execution petition was left blank, more so when the same execution petition contains a note that the decree was transferred to the court below on an application made by the decree-holder in November 1955 i.e., long after the date on which the order relied upon for the purpose of saving the petition from the bar of limitation was passed by Tendolkar, J.
11. The other requirement viz., that the order should be one containing either expressly or by implication a judicial determination that the decree is still alive and capable of execution is also satisfied in this case since the notice issued to the judgment-debtor under Order 21. Rule 22, Civil P.C. called upon him 'to show cause why the decree on Commissioner's report pronounced against you on the 8th day of September 1943 in the above said should not be executed against you' and the order made by the learned Judge after service of the aforesaid notice to the judgment debtor, specifically states that 'the plaintiffs be and they are hereby at liberty to execute the decree herein dated 8th September 1943 against the defendants.' implying that the decree was still capable of execution at the date on which the order was made as otherwise the learned Judge would not have expressed in the order that the decree-holder was at liberty to execute the decree. As all the essential conditions necessary to constitute a 'rrevivor' are satisfied by the order dated 5-8-1955, we have to find that that it serves to operate as a 'revivor' of the decree within the meaning of Art. 183 of the Limitation Act and that the petition filed for execution of the same is not barred by limitation.
12. The order and decree of the court below,. are therefore set aside and the matter is remitted to it to issue further steps execution. The appeal is accordingly allowed but we leave the parties to bear their respective costs in the circumstances of the case.
13. Appeal allowed.