P. Chandra Reddy, C.J.
1. The primary point that falls for decision in this Letters Patent Appeal relates to the scope of Article 182 (5) of the Indian Limitation Act and it arises in the following circumstances :
2. The appellant filed a suit in the court of the District Munsif, Tirupathi, for recovery of possession of a vacant site situated in the Tirupati town leased out by his father permanently to the respondent on a rental of Rs. 2/- per month on the ground that it did not bind him. Judgment was entered by the trial Court in favour of the appellant on 7-9-1949. An appeal carried by the aggrieved respondent to the appellate Court proved unsuccessful, the date of the appellate Court's decree being 5-12-1950. During the pendency of the appeal, the respondent sought stay of execution of the decree and that was granted on condition that he deposited the costs awarded against him. The respondent deposited the costs on 17-1-1950. The appellant applied for payment out of this amount by means of a cheque on 2-2-1953 and an order for the issue of a cheque was made by the appellate court on 13-2-1953.
3. The appellant put into execution the decree in his favour on 27-1-1955. This was resisted by the respondent on the objection that the execution petition was barred by limitation, it not having been filed within three years from the date of the appellate decree. This opposition did not prevail with the executing Court which thought that the application for payment out made by the appellant on 2-2-1953 served as a step-in-aid of execution. The appeal filed by the respondent was allowed by the District Judge, Chittor. The decree-holder brought a civil miscellaneous second appeal to this court. Ranganadham Chetty J. who heard the appeal, accepted it as respects the decree for costs but dismissed it in so far as it related to the decree for possession of the immovable property. However, the learned Judge granted leave under clause 15 of the Letters Patent and that is how the matter is now before us.
4. In this appeal, we are called upon to decide whether the petition by the appellant-decree-holder filed in the Court of the Subordinate Judge for the issue of a cheque in 1953 could be regarded as having been filed in a 'proper court' within the ambit of Article 182 (5) of the Indian Limitation Act.
5. As the solution of the problem that poses itself in this enquiry depends upon the construction, to be placed on Article 182, it is useful to quote it here in so far as it has a bearing on this appeal. That Article is in these words :
For the execution of a decree or order of any Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908 (V of 1908).
Three years.1. The date of the decree or order, or
x x x
5. (Where the ap-plication next hereto after mentioned has been made) the date of tbe fined order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or
X X X The expression 'proper court'' has been explained in Explanation II to mean, the Court whose duty it is to execute the decree or order, 'Ranganadham Chetty J. thought that the appellate Court had no jurisdiction to entertain a petition either for execution or to take some step in aid of execution of the decree and, therefore, the decree in so far as it concerned the immovable property is not saved by this Article.
6. This opinion of our learned brother is assailed by Sri Narasinga Rao, learned counsel for the appellant, on the contention that the relevant provisions of the Civil Procedure Code have conferred Jurisdiction on an appellate Court and it was quite, competent for the decree-holder to maintain an execution petition in the Subordinate Judge's Court which disposed of the appeal. This argument is founded on Sections 37 and 38 of the Code of Civil Procedure.
7. In our opinion, the appellant cannot draw any support from these two sections. Section 37 postulates :
'The expression 'Court which passed a decree' or words to that effect, shall in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include-
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.'
Reliance is placed only on Clause (a) of Section 37 by the learned counsel for the appellant to substantiate this proposition. Section 38 is in these words: 'A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution,'
8. It is immediately plain from the language of Section 37 C. P. C. that even in a case where the decree to be executed has been passed by the appellate Court, jurisdiction is conferred upon the trial Court in that behalf. This discloses the intention of the legislature that even where the decree is passed by the appellate Court reversing that of the trial Court, the function of executing that decree should be entrusted to the Court of first instance. It is argued by Sri Narasinga Rao that the jurisdiction of the appellate Court is not ousted by Section 37 C. P. C. which merely vested jurisdiction in the trial Court also to execute the decree and that both the Courts have concurrent jurisdiction and the learned Judge was in error in thinking that the inclusion of the trial Court for the purpose of execution in Section 37 implied the exclusion of jurisdiction of the appellate Court in that regard. We are unable to give effect to the point raised by the learned counsel.
Even if the decree, was passed by the appellate Court, it is highly doubtful whether it hag jurisdiction to execute the decree. It may be that it is not by virtue of Section 37 C. P. C. that the appellate. Court cannot entertain execution petition. But, there does not seem to be any provision of law which empowers the appellate Court to entertain an execution petition.
9. Seeni Nadan v. Muthusamy Pillai, ILR 42 Mad 821 at p. 834 : (AIR 1920 Mad 427 at p. 433) (FB), called in aid by the learned counsel for the appellant throws some light on the question whether the appellate Court contemplated by Section 37 C. P. C. has jurisdiction to execute the decree. Wallis, C. J., who gave the leading opinion of the Full Bench, observed:
'Now, it may well be that under Sections 37 and 38 the Appellate Court has no jurisdiction to execute its own decree, but that is not because such jurisdiction is excluded by the use of the word 'include' as has been argued, but because it had no such jurisdiction under Section 362 of the Code of 1859, and it may well be questioned having regard to the presumption already referred to, whether, when the section was eliminated in redrafting and the matter was dealt with in Sections 649 and 223 (now 37 and 38), there was any intention to confer on the Appellate Court jurisdiction which it had not till then possessed .........'
10. On these remarks, it may legitimately be argued that the appellate Court does not possess jurisdiction to entertain an execution petition even in a case where it has passed the decree. However, it is unnecessary for us to express any final opinion on the complicated questions which might arise if the situation as the one contemplated by Section 37 were to prevail here. The present is a case where the decree was passed by the trial Court and the appeal against that decree was dismissed. We do not, therefore, think that it could be posited in such a case that the decree was passed by the Subordinate Judge in the exercise of his appellate jurisdiction. We will presently show that even if it were the position, the appellant cannot succeed, as Article 182 (5) would not come to his rescue.
11. We do not think that Section 38 C. P. C. gives any assistance to the appellant, as it merely says that a decree could be executed either by the Court which passed the decree or it could be sent to another Court for executing it. The appellant cannot press into service Sections 37 and 38 C. P. C.
12. Even otherwise, he is bound to fail in this appeal having regard to the terms, of Article 182. He cannot succeed unless he is able, to establish that the Court of the Subordinate. Judge in which he presented the petition for payment out would answer the description of 'proper Court' within the meaning of Article 182(5) of the Limitation, Act. The key to the mind of the legislature is furnished by Expl. II, which says that a proper Court'' is one whose duty it is to execute the decree.
13. Now, could it be successfully contended that it was the duty of the Subordinate Judge's Court to execute the decree? Learned counsel for the appellant urges that since the appellate. Court could also entertain an application for execution, we should deem that Court to be one whose duty it is to execute the decree or order. We are unable, to subscribe to this view. Assuming for the sake of argument that even if the appellate Court, which has confirmed, the decree of the trial Court, possessed jurisdiction to entertain the execution petition, we do not think that it is the duty of that Court to execute the decree. The word 'duty' connotes obligation. A Court or an individual is said to be under a duty only when such Court or the person concerned is bound to perform the function. In our opinion the word 'duty' will not be apt in the context of a discretion to do the particular thing. That expression denotes that one cannot refuse to perform the act but is bound to do it. The two concepts are different.
14. The learned Counsel for the appellant thinks that the meaning of the word 'duty' as given in the Oxford English Dictionary (Vol. III) aids his construction of the word. One of the meanings of the word given in the dictionary is:
'The action which one's position or station directly requires; business, office, function'.
He argues that these meanings connote a right, calling or profession. Stress is laid by the learned counsel upon the expressions 'business, office, function'. We are unable to accept the meaning ascribed by him to the words 'business, office, function'. The idea involved in these words is the same as in the clause. 'The action which one's position or station directly requires''. We may here also mention the other meanings contained in the dictionary, viz.,
'Action, or an act, that is due in the way of moral or legal obligation; that which one ought or is bound to do; and obligation.'
15. In our view, these meanings far from supporting the theory propounded by the learned counsel are destructive of it. We have no hesitation in saying that the Explanation has reference to a Court which is bound to execute the decree and which cannot refuse to do it. We can gather support for this opinion of ours from Section 15 C. P. C. and even from Section 37 C. P. C. Section 15 recites:
'Every suit shall be instituted in the Court of the lowest grade competent to try it.'
This section throws a food of light on the intention of the legislature, namely, that, normally, a litigant should seek remedy in the Court of the lowest grade competent to try it. Even with regard to execution, the same trend is evidenced by Section 37 C. P. C. It is useful in this context to refer to Order 21 Rule 2 C. P. C., which employs the same language with regard to certification of payment or adjustment. It says that the decree-holder should certify such payment or adjustment to the Court whose duty it is to execute the decree.
16. The language of these provisions of law and the terms of Explanation II to Article 182 of the Limitation Act leave not much scope for the contention that any Court which is possessed of jurisdiction to entertain an application could be described as a Court whose duty it is to execute the decree. Further, if the view pressed upon us by the learned counsel for the appellant is to be accepted, it will lead to very inconvenient results. The appellate Courts and even the High Court and the Supreme Court will be flooded with execution petitions merely because they happen to affirm the decrees of the trial Courts. We have, therefore, no doubt in our minds that it is only the Court of first instance that is in the contemplation of Explanation II to Article 182 of the Limitation Act.
17. In this view of the matter, it is unnecessary for us to consider whether the application for payment out could, in the circumstances of the case, be regarded as an application to take some step in aid of execution. So, we do not propose to deal with the argument advanced by the learned counsel for the respondent that the application, in the circumstances of the case, namely, that it was to draw out the money deposited not in execution of the decree but as a condition to the granting of stay, would not constitute an application for taking a step in aid of execution.
18. In the result, the appeal is dismissed, but, there will be no order as to costs.