Shiv Dayal Shirvastava, J.
1. This is a decree-holder's second appeal. The facts are undisputed and are these. On 13-2-1947 the appellant obtained a money decree against the respondents in the court of Munsiff of Mathura. On April 2,1947, the application for execution was made. On April 22, 1947 notice was issued to the judgment-debtors. However, on 29-10-1947 the execution was dismissed for default.
2. The second application for execution was made on 18-12-1948 praying that the decree be transferred to Gwalior for execution. Third application was made on 3-1-1949. Fourth application for execution was made on 25-2-1950. All these successive application, for execution were dismissed for default one after another,
3. Finally on 21-7-1950 fifth application for execution was made in the Court at Mathura. In this application the prayer was that the decree be transferred to Gwalior where the judgment-debtors reside and have properties. By its order dated 26-7-1950 that Court transferred the decree to the District Judge Gwalior. When the execution proceedings commenced at Gwalior the judgment-debtors took several objections including (1) that the decree could not be executed in the Court at Gwalior; and (2) that the application for execution was barred by time,
4. On May 7, 1951, the District Judge Gwalior held that the execution was competent and could be proceeded with. On 21-5-1951, the other objections excepting the one relating to limitation, were also over-ruled. Aggrieved by the order of May 7, and 21, the judgment-debtors went in appeal to the High Court of M. B. The same was dismissed on 15-11-1954. The case then went back and further proceedings started in the Court of Civil Judge First Class, Lashkar under the order of the District Judge, Gwalior.
5. On 5-9-1955, the Civil Judge First Class, Lashkar held that the application for execution was within limitation and he further overruled the new objection of the judgment-debtors that the order dated 26-7-1950 being prior to 1-4-1951 was not valid in law.
6. Aggrieved by that judgment, the judgment-debtors took an appeal to the District Judge on both these grounds which found favour with the appellate Court and the application for execution was dismissed. It is against that judgment and decree that the decree-holder has come to this court in second appeal.
7. The first contention raised on behalf of the appellant is that it was not open to the judgment-debtors to raise the new objection that the decree had not been validly transferred by the Mathura Court to Gwalior and it must be deemed to be covered by the judgment dated 15-11-1954 of the M.B. High Court whereby this decree was held to be executable in the Court at Gwalior. I have perused the judgment of the High Court passed in this case. The High Court following the Full Bench decision of the Court in the case of Brajmohan Bose v. Kishorilal Kishanlal, AIR 1955 Madh-B 1, held that a decree of a British Indian Court could be executed in a court at Gwalior after 1-4-1951. In that judgment the question whether before 1-4-1951 a decree could or could not be transferred was not decided. The order dated 15-11-1954 passed by the M. B. High Court reads thus.
'In view of the decision given in Second appeal No. 29 of 1952: (AIR 1955 Madh-B 1), the appeal is dismissed. Parties to bear their own costs of this appeal.'
It is not possible to hold from the above order that the question now under discussion was also decided directly.
8. Then Shri Saxena contends that since the decree was in fact executable as held in this very case by the High Court, it would be to no practical use if it is now held that as the order of July 26, 1950 was made by Mathura Court before 1-4-1951, the decree should be returned to Mathura Court. That course will only entail multiplicity of proceedings. Reliance is placed on the decision in Lunaji Narayan Firm v. Purushottam Charan, AIR 1953 Madh-B 225 as also on the observation of Samvatsar J. in Brajmohan Bose's case AIR 1955 Madh-B 1. Shri Gupta learned counsel for the judgment-debtors wants to reagitate the question whether a decree passed by a British India court before the Constitution, could be executed in a court at Gwalior. In other words, the learned counsel wants to reagitate the question decided in Brajmohan Bose's case AIR 1955 Madh-B 1 as that decision of the Full Bench is not binding on me. In my judgment Shri Gupta cannot be permitted to address me on that question because it has been decided against him in this very case by judgment elated 15-11-1954. The matter would have been different if Brajmohan Bose's case AIR 1955 Madh-B 1 (FB) were cited only as a precedent.
9. The argument of Shri Gupta is that the order passed by the Mathuxa Court on 26-7-1950 was without jurisdiction, as it had no power to pass that order. In my opinion the argument of Shri Gupta is not sound. The execution court had certainly the jurisdiction to transfer the decree for execution to another court. It is altogether a different matter whether that order would or could not obtain the desired relief from the transferee court. In AIR 1953 Madh B 225 two cases were decided. In one of them the decree was transferred to Muradabad on 22-12-1950 and the proceedings started in the court of Civil Judge Ratlam on 8-2-1951. A notice was issued to the judgment debtor on 24-3-1951. In the other appeal the decree was transferred by Munsiff Bijnor (U. P.) on 9-9-1949 and proceedings were started on 29-4-1950 before the District Judge, Mandsaur, The High Court not only held that the decrees became executable after April 1, 1951, but also allowed both the execution applications to continue.
10. In Brajmohan Bose's case AIR 1955 Madh-B 1 on the basis of which the judgment-debtor's appeal was decided by the M. B. High Court the late Samvatsar J. observed that
'The Civil Procedure Code which was in force when the decree was put in execution was the Code of 1908 as adapted in Madhya Bharat by Act 70 of 1950. This defined the word 'foreign court' in Section 2(5) and according to this definition 'a foreign court' was a court outside Madhya Bharat. On 1-4-1951 this code was repealed and the code of 1908 was itself extended and applied to the whole of India including Part 'B' states but excluding Jammu and Kashmir and certain specified parts by Act 2 of 1951.'
'The definition of the word 'foreign court' had necessarily to undergo a change and a foreign court came to be defined as a court outside India, which is not established or continued by the authority of the Central Government. This was the definition in force on the date the order under appeal was passed and on that day the decree sought to be executed was according to this definition not a decree based on a judgment of a foreign court.'
'This definition will apply to any execution that may be filed in courts in Madhya Bharat after 1-4-1951, and should in my opinion govern the present proceedings. It is competent for the courts to have regard to the law it existed on the date of the passing of the order even in appeal and in my opinion the definition of the word 'foreign court' in the Code of 1908 as amended by Act 2 of 1951 should be applied in the present case. This would avoid unnecessary litigation and multiplicity of proceedings,'
11. Once it is held that the decree could be executed, substantial relief can be given and multiplicity of proceedings can be avoided by the course adopted in the above M. B. decisions which though not binding, are entitled to respect. It is all the more so for the present appeal.
12. This brings me to the question of limitation. In the decree-holder's application dated 4-4-1947, the prayer was 'by attachment of the amount in deposit in the Imperial Bank of India, Gwalior, Gwalior Branch and in Central Bank of India, Gwalior Branch Gwalior.' In this application there was no prayer for the transfer of the decree to Gwalior. Finally on 29-10-1947 order passed on that application was 'Execution struck off in default.' Under Article 182(5) of the Limitation Act the present application dated 21-7-1950 was within three years. In the fourth application dated 25-2-1950 also the prayer was for the attachment of the judgment-debtor's monies in the Imperial Bank of India, Gwalior, Branch Gwalior and the Central Bank of India Gwalior, Gwalior Branch without a prayer for transfer of the decree to Gwalior.
13. The argument of Shri Bhagwandas Gupta's is that in both these previous applications the relief claimed was attachment of the property which was outside the jurisdiction of the Mathura Court, and, that being so, it cannot be said that any of the previous applications was made 'in accordance with law' within the meaning of that article. The learned counsel relies on a decision of the Patna High Court reported in Krishna Das v. Krishna Bageria, AIR 1955 Pat 187 where S. K. Das, J. (as he then was) held that such applications could not be said to have been made to proper court. But there is a Division Bench decision of this court in Kanmal Meghraj v. Govind Prasad, ILR (1946) Nag 563: (AIR 1946 Nag 365} in which it has been held.
'When an execution application is made to the Court which passed the decree the fact that the application claims the relief of attachment and sale of immoveable property lying outside the territorial jurisdiction of the court without stating that decree be transferred for execution does not render the application not according to law. The relief of transfer of the decree for execution to the court competent to attach and sell is implicit in the application.' I am bound by the law laid down in this decision and on this basis I must uphold the decree-holder's contention.
14. Shri Gupta further argues that the previous applications of the decree-holder were mala fide and were made merely to keep the decree alive. They could not be said to have been made bona fide and, therefore, were not made in accordance with law. In my opinion this argument has no substance. It is sufficient to mention the Privy Council authority in the case of Khalil-ur-Rahman Khan v. Collector of Etah, ILR 55 All 993: (AIR 1934 PC 14) which repels Shri Gupta's contention. When an application is made for execution of a decree it is not within the power of the Court executing the decree to start an enquiry into the motives of the decree-holder or his advocate behind the application. The question whether the application for execution was mala fide one is wholly immaterial for the purpose of saving limitation.
15. The result is that the application forexecution can continue and if is within limitation.This appeal is accordingly allowed, the judgmentand order passed by the lower appellate court areset aside and those passed by the Civil JudgeFirst Class, Gwalior on 5-9-1955 are restored. Theappellant shall get his costs in this court and inthe District Judge's Court.