1. This revision has been referred to a Division Bench by a learned Judge of this Court because of an apparent conflict between a ruling of this Court and that of the Calcutta High Court. It appears that a money decree was obtained on 30th April 1920 by Saghubir Prasad against Bachman Tewari, which was being executed for some years without complete satisfaction. On 13th November 1928 Bachman Tewari died, but apparently this fact was not then brought to the notice of the decree-holder who filed an application on 15th December 1928. The Court below has treated this application as an application for execution, but in reality it was an application praying for the transfer of the execution of the decree from the Court of the Judge, Small Cause Court, Gorakhpur, to the Deoria Munsifi on the ground that the judgment-debtor and his property were within the jurisdiction of that Munsifi. On 19th February 1929 the Court transferred the execution of the decree to the Deoria Court. On 27th February 1929 the decree-holder applied there for execution and notice was issued to the judgment-debtor which was returned un-served with the report that the judgment-debtor was dead. This report was put up before the Court on 19th April 1929 and the Court ordered that the decree-holder should take necessary steps by the 29th. He failed to take any steps and the application for execution was dismissed on 29th April 1929 and a certificate was sent to the Gorakhpur Court. Subsequently the decree-holder died and his widow did not file any application for execution till 11th March 1932. This was against Bir Bhadarman and Chilarman, the sons of the deceased judgment-debtor.
2. The Court below has held that the application was barred by time because it was not made within three years of any application made in accordance with law or any proper step taken in aid of execution, In the first place, we must point out that there has been a misapprehension in treating the application of 15th December 1928 and an application for execution. As already noted it was an application praying that the execution of the decree be transferred to the Deoria Court. It was accordingly an application for taking a step-in-aid of execution and not an application for execution itself. Sir John Edge and Blair, J. in Madho Prasad v. Kesho Prasad (1897) 19 All. 337 held that applications for the execution of a decree made after the death of the judgment-debtor and without either any representative of judgment-debtor brought upon the record or there being any subsisting attachment of the property against which execution is sought are not good applications for the purpose of saving limitation. The Calcutta High Court appears to have dissented from this ruling in Bipin Behari Mitter v. Bib Kohra (1908) 35 Cal. 1047 following some earlier cases including a case of the Madras High Court. With great respect, we are unable to agree to the view expressed by the Calcutta High Court and we think that the ruling in Madho Prasad's case laid down the correct law. It is impossible to hold that if an application for execution is not an application in accordance with law, having been against a parson who is dead, it is nevertheless a good application to take some steps-in-aid of execution against the deceased. There would be no object in drawing a distinction in Article 182 between an application made in accordance with law and taking steps-in-aid of execution, if the same application for execution, while not fulfilling the first requirement, were to be a good application for the second purpose. When a person is dead, proceedings for execution taken against him cannot be regarded as any valid proceedings at all. The taking of some steps-in-aid of execution is obviously something different from the mere filing of an application for execution which, in itself is not in accordance with law.
3. But in the present case we have already pointed out that the application of 15th December 1928 was really not one for execution of the decree but one for taking a step-in-aid of execution. Under Sections 38 and 39, Civil P.C., Courts are empowered to sand decrees for execution to other Courts. They may either proceed suo motu or proceed on the application made by the decree-holder. These sections do not provide that notice must be given to the judgment-debtor before the order is made. Similarly there appears to be a clear distinction drawn in Order 21 between applications for transfer of execution of a decree dealt within Rules 3 to 9 and applications for execution of decrees dealt with in Rule 10 and the following Rules. The first set of rules do not even lay down that the name of the judgment-debtor should be specified nor is it necessary that the mode of execution should be specified. On the other hand, Rule 11 requires particulars to be supplied when an application for execution is made and they include the mode in which the assistance of the Court is required as well as the name of the person against whom execution of the decree is sought. The decree-holder in applying for the transfer of the decree to another Court was merely asking the Court to transfer the execution of the decree as it stood and which decree was mot dead simply because the judgment-debtor was dead. We are therefore of opinion that an application for the transfer of the execution of a decree made at a time when the judgment-debtor is dead is a valid application to take steps-in-aid of execution. It cannot be said that no proceeding taken when the judgment-debtor is dead can be such a valid step. We may give the instance of an application for substitution of names of heirs which is to be made after the death of the deceased judgment-debtor. But even this aspect of the matter does not help the decree holder. Time began to run from the date of the order made by the Court on 19th February 1929 on the application for taking steps-in-aid of execution which had been filled on 15th December 1928. More than three years expired before the present application was made, so this is of no avail to the decree-holder.
4. The application for execution made on 27th February 1929 in the Deoria Court was undoubtedly an application for execution made against a dead person, and was in our opinion not in accordance with law. Differing from the view taken in Calcutta and Madras and following the ruling of our own Court, we must hold that this application for execution which was not in accordance with law did not amount to an application for taking steps-in-aid of execution. Accordingly the decree-holder did not get a fresh start from the 29th April 1929 when this application for execution was ultimately dismissed. The present application not being within three years of any order on any application in accordance with law for execution or on any valid application for taking step-in-aid of execution, is barred by time. The application is accordingly dismissed with costs.