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Chanda Yadgiri Vs. M. Venkataiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Against Order No. 440 of 1957
Judge
Reported inAIR1963AP241
ActsLimitation Act, 1908 - Schedule - Article 182(5); Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 16 and 22 - Order 22, Rule 16
AppellantChanda Yadgiri
RespondentM. Venkataiah and ors.
Appellant AdvocateA.V. Surya Rao, Adv.
Respondent AdvocateV. Madhava Rao, Adv.
DispositionAppeal allowed
Excerpt:
civil - execution - order 22 rule 16 and order 21 rule 11 of code of civil procedure, 1908 and section 182 (5) of limitation act, 1908 - decree transferred to appellant - petition under order 21 rule 16 by transferee decree holder for recognition of transfer and issue of notice to judgment debtor ( petition filed after lapse of two years from passing of decree ( no mode of execution mentioned in petition - petition not to be considered proper execution petition - court having jurisdiction accepted petition ( petition to be considered a valid step towards execution. - - a perusal of that judgment would clearly establish that the learned judges far from differing from the view expressed in ilr 31 mad 234, referred it with approval......some others on 11-1-1949, which was confirmed on appeal by the erstwhile hyderabad high court. the decree-holder levied execution of the decree for the first time on 20th seotember, 1950. pending execution, he assigned the decree to the appellant. immediately, the transferee made an application under order 21, rule 16 with the assignment deed annexed. as this document was insufficiently stamped, it was sent to the revenue authorities for impounding it. since there was delay in getting it back, the executing court struck off the execution petition from the file, being of the opinion that it was not desirable to keep the matter pending before the court and that it was open to the parties to submit a fresh petition after the receipt of the document.3. subsequently, the appellant presented a.....
Judgment:

Chandra Reddy, C.J.

1. This appeal is against the order of the Subordinate Judge, Karimnagar, dismissing an execution petition filed by the appellant on the ground that it was barred by limitation.

2. A decree was obtained by one Buchi Rama Rao for a sum of Rs. 13,830/- against the respondents and some others on 11-1-1949, which was confirmed on appeal by the erstwhile Hyderabad High Court. The decree-holder levied execution of the decree for the first time on 20th Seotember, 1950. Pending execution, he assigned the decree to the appellant. Immediately, the transferee made an application Under Order 21, Rule 16 with the assignment deed annexed. As this document was insufficiently stamped, it was sent to the revenue authorities for impounding it. since there was delay In getting it back, the executing Court struck off the execution petition from the file, being of the opinion that it was not desirable to Keep the matter pending before the Court and that it was open to the parties to submit a fresh petition after the receipt of the document.

3. Subsequently, the appellant presented a petition again under Order 21, Rule 16, C. P. C. on 19-11-1953 for recognition of the transfer and for the issue of notice to the judgment-debtors, as more than two years had elapsed since the passing of the decree. Thereupon, notice was issued both to the decree-holder and the judgment-debtors. Neither of them appeared in Court and the petition for transfer of the decree was accepted.

4. Within three years thereof i.e., on 5-10-1956, the present execution application giving rise to the present appeal was filed.

5. The Trial Court dismissed the application as being time-barred since the prior execution petition could not be regarded as one in accordance with law for the reason that it did not contain a prayer for execution of the decree, the request being only for the issue of notice to the judgment-debtors. This view of the Subordinate Judge is canvassed before us.

6. It is true that Order 21, Rule 16, C. P. C. contemplates the execution of the decree by the assignee decree-holder. If such a petition is filed, the decree will be executed in the same manner and subject to the same conditions as if the application is made by the decree-holder. The execution petition has to contain the particulars enumerated in Order 21, Rule 11, C. P. C. The petition has to state the mode in which the assistance of the Court is required. It is not disputed that the execution petition in the present case was defective in that it did not indicate the mode in which the assistance of the Court was sought. The assignee decree-holder asked merely for the issue of notice to judgment-debtors in view of Order 21, Rule 22, C. P. C. That being the position, it could not be regarded as a proper execution petition.

7. That takes us to the question whether the petition does not serve any purpose at all, i.e., whether it could operate as a step-in-aid of execution. In our judgment, such a petition, could be regarded as a step-in-aid of execution. A transferee of the decree cannot seek to execute the decree without his transfer being recognised by the Court. We are aware of the fact that two independent petitions need not be filed -- one for recognition and another for execution. Both the reliefs could be clubbed in one petition. But when a petition is filed under Order 21, Rule 16, C. P. C. without giving the necessary particulars, two courses are c-pen to the executing Court under Order 12, Rule 17, C. P. C. namely, either to return it for amendment of the petition or to reject it. Instead of adopting either of the two courses, the Court made an order accenting the petition. Therefore, the petition must be deemed to be one in accordance with law, and as such serves as a step-in-aid of execution.

8. There is authority for this view of ours in Annamalai Mudaliar v. Ramier, ILR 31 Mad 234 and Pitam Singh v. Tota Singh, ILR 29 All 301. In both the cases it was held that an application for recognition by the transferee decree-holder was an application to take a step-in-aid of execution in accordance with law though the particular being on the mode of execution were not furnished. This ruling was followed by the Rangoon High Court in Moidoo v. Mohamed, AIR 1933 Rang 55.

9. This is also the principle enunciated by the Supreme Court in Jugalkishore v. Rao Cotton Co. Ltd., (S) AIR 1955 SC 376.

10. Sri Madhava Rao, learned counsel for the respondents relied on Alagappa Chetty v. Ramaswamy Chetty, 21 Ind Cas 609 (Mad), as containing a contrary proposition. A perusal of that judgment would clearly establish that the learned Judges far from differing from the view expressed in ILR 31 Mad 234, referred it with approval. That was not a case which raised the question whether such an application would keep alive a decree for purposes of Article 182 of the Limitation Act. The point for consideration there was whether a prayer for execution could be added some time after the presentation of the petition. That being so, no guidance could be derived by that pronouncement. Therefore, the view of the Subordinate Judge that the execution petition filed on 19-11-1953 would be of no avail for purposes of limitation is unsound and cannot be sustained.

11. There is another reason why the appellant should succeed. It should be remembered that the execution petition filed on 19-11-1953 contained a prayer for the issue of notice to the judgment-debtors since there was an interval of more than two years between the passing of the decree and the filing of the execution petition. It may be mentioned that at the relevant time, Order 21, Rule 22, C. P. C. required the issue of notice if one year elapsed after the passing of the decree. Would this prayer also serve to treat the petition as a step-in-aid of execution? Our answer is in the affirmative.

12. We are supported in this conclusion of ours by the judgment of the Madras High Court in Kamakshi Pillai v. Ramaswamy, 18 Mad LJ 14, where Mitter, J. and Munro, J. ruled that an application for execution, though not in accordance with law, may help to save limitation if it contains the prayer for the issue of notice under Section 248, C. P. C. which corresponds to Order 21, Rule 22, C. P. C. in a case in which notice was necessary in order to enable execution to proceed. There is no dispute that in this case notice was absolutely essential by reason of Order 21, Rule 22, C. P. C. On this ground also, the applicant has to succeed.

13. In the result, the appeal is allowed with costs throughout. The Trial Court will take on its file the execution petition and decide it on merits.


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