Horace Owen Compton Beasley, Kt., C.J.
1. The question for consideration in this appeal is whether an execution petition filed on the 22nd November, 1926, was barred by limitation. The executing Court found it barred; the lower appellate Court found it not barred and Pakenham Walsh, J., in Second Appeal found that it was barred.
2. Briefly the facts are as follows: - The decree-holder in O.S. No. 434 of 1919 in the District Munsif's Court Madanapallee, put in an execution application on 20th August, 1923, for the transfer of the decree to the District Munsif's Court of Chittoor for execution. Defendants 3 and 6 contested the application saying that the decree was fully satisfied. Transfer of the decree for execution was eventually ordered on 7th December, 1923. The execution petition of the 22nd November, 1926, was admittedly barred unless something had been done subsequent to the date of the application of 20th August, 1923 which saved limitation. The article of the Limitation Act in question is Article 182 (5) and the appellant in the lower appellate Court and the second appellate Court contended that he had taken a step-in-aid of execution of the decree within three years before the filing of the execution petition on the 22nd November, 1926. Three steps were relied upon. The first was a batta application, Ex. B, put in on 27th November, 1923, the second was a vakalath put in in the appeal preferred by the judgment-debtors against the transmission of the decree, and the third was an affidavit, Ex. C. The plaintiff had been ordered to produce his accounts and in Ex. C stated that he had not those accounts in his possession, and in paragraph 3 of Ex. C stated 'as prayed for in the petition, orders are necessary for taking out execution.' Pakenham Walsh, J., took the view that none of these steps were steps-in-aid of execution of the decree.
3. I will proceed to consider the first step relied upon which is also the first in order of date. The batta application (Ex. B) was one made under Order16, Rule 1, Civil Procedure Code, asking the Court to summon persons to attend and give evidence. It is common ground that these witnesses were required by the appellant for the purpose of showing that the judgment-debtors' objection that the decree had been satisfied was untrue. The appellant's contention is that this objection or obstruction to execution by the judgment-debtors had to be removed before the decree could be executed and that, by presenting the batta application to the Court, he was asking the Court to do something which would help to remove the obstruction to execution and allow execution to go on and that the batta application therefore was a step-in-aid of execution. It is admitted by the respondents that there are no decisions of the Madras High Court in which an exactly similar state of facts has been considered. On the other hand, there are nine decisions of other High Courts all of them directly bearing on this point, and in all of which it has been held that this and similar steps were steps-in-aid of execution of the decree within the terms of Article 182(5) of the Indian Limitation Act. I propose, first of all, to deal with these decisions. The first of these is Kedar v. Lakhi (1917) 26 C.L.J. 115. There, an application for execution of 'a decree for possession of certain property had been made and the judgment-debtor filed an objection which rendered it necessary to ascertain the standard of measurement and for that purpose the decree-holder applied for summons upon his witnesses. It was held that the application made by the decree-holder for summoning witnesses was an act in furtherance of his application for execution and was, therefore, a step-in-aid of execution within the meaning of Article 182(5) of Schedule I of the Indian Limitation Act. The next is Brojendra Kishore Roy Chowdhury v. Dil Mahmud Sarkar 22 C.W.N. 1027. There, in execution proceedings the judgment-debtor put in an objection and the Court ordered the parties to adduce evidence in support of their respective cases. The decree-holder filed a list of witnesses and stated that he was ready to proceed with his case and it was held that this implied an application to the Court to take the evidence which he was prepared to adduce to repel the objection taken by the judgment-debtor and in effect was an application to the Court to take some steps-in-aid of execution. In Hatimulla v. Sukhamoy Chauduri : AIR1930Cal304 it was held that, where a judgment-debtor presented a petition saying that there was an adjustment of the decree and the decree-holder attended Court with witnesses to contest that case, this act on the part of the decree-holder should be taken to be an application to the Court to take a step-in-aid of execution. In Ram Lakhan Singh v. Lala Mewa Lal : AIR1922All433 the facts were slightly different. There, execution proceedings were consigned to the record-room by an order passed behind the back of the decree-holder without any default on his part and without any decision : and it was held that a further application made by the decree-holder was really a continuance of the older application and came within Article 182(5). In Abdul Quddus v. Sayed Ahmad Husain A.I.R. 1923 All. 415, which is directly in point, it was held that, where in execution of a simple money decree a certain property was attached and objection was preferred by the judgment-debtor and the decree-holder put in his application to summon witnesses in reply to the objection, this application for summoning witnesses was a step-in-aid. In Umar Din v. Ghulam Muhammad A.I.R. 1927 Lah. 653 it was held that an application by the decree-holder to summon witnesses to resist an objection by the judgment-debtor was a step-in-aid. In Ram Chand v. Dyal Singh A.I.R. 1929 Lah. 335 there was an application by the decree-holder to get rid of the objections raised by the judgment-debtor and an application for extension of time in complying with the orders of the Court and it was held that these were steps-in-aid of execution. In Sheo Sahay v. Jamuna Prasad Singh I.L.R. (1924) 4 Pat. 202, where the facts were similar to those here, in the judgment of the Court it is stated:
There can hardly be any doubt that the decree-holders are entitled to regard any step taken by them to remove the obstacle thrown by the judgment-debtor in their way to the realization of their decree as a step-in-aid of execution.
4. In Jagdeo Narain Singh v. Rani Bhubaneshwari Kuer I.L.R. (1928) 7 Pat. 708 it was held that the filing of a list of witnesses in order to contest an application made by the judgment-debtor to set aside an execution sale was a step-in-aid of execution within the meaning of Article 182(5) of the Limitation Act. These decisions bear directly upon this point and express with no uncertain voice the opinion of four of the Indian High Courts.
5. On the respondents' side reliance was placed upon two decisions of this High Court. The first was Kuppuswami Chettiar v. Rajagopala Aiyar I.L.R. (1921) 45 Mad. 466 : 42 M.L.J. 303. There, a decree-holder filed an objection to the judgment-debtor's application to enter up satisfaction of the decree. No application for execution was pending then and it was held that the decree-holder's statement in objection was not a step-in-aid of execution especially when no application for execution was pending. At page 471 of 45 Mad. Ayling, J., says:
But whatever case may be made out for an application made in connection with a pending execution petition as one for taking a step-in-aid or furtherance of it, an application made at a time when no execution petition is pending stands on an obviously different footing. A man cannot be said to take some step-in-aid of a petition which has not been initiated.
6. It was unnecessary there to express any opinion upon the point whether a statement filed in opposition to a decree-holder's objection in execution proceedings can be a step-in-aid of execution. This case is clearly distinguishable from the present case for the reason that there was no execution petition pending and further in this case we are not dealing with the mere filing of a statement but with an application made to the court to summon witnesses. In my opinion, this case is of no assistance to the respondents. The other case is Krishna Patter v. Seetharama Patter I.L.R. (1926) 50 Mad. 49 : 51 M.L.J. 480. There, it was held that the filing of a statement by a decree-holder objecting to the judgment-debtors' application to record satisfaction of the decree is not a step-in-aid of execution of a decree and Kuppuswami Chettiar v. Rajagopala Aiyar (1921) I.L.R. 45 Mad. 466 : 42 M.L.J. 303 (already referred to) was followed. Here again, no application to the court had been made to summon witnesses. There had been merely the filing of a statement. In the course of the judgment, Phillips and Madhavan Nair, JJ. refer to a passage from the judgment of Seshagiri Aiyar, J., in Rangachariar v. Subramania Chetty (1920) 12 L.W. 9 at 10 where he says:
Two things are essential. There must be an application and that application must ask the Court to take a step-in-aid of execution.... The bare fact that a party took some steps would not be enough.
7. Reliance is also placed by him on a passage from the judgment in Raghunundan Misser v. Kallydut Misser I.L.R. (1896) 23 Cal. 690 What was being considered in that case was whether an application by a decree-holder for leave to bid at a sale in execution of the decree is a step-in-aid of execution. The passage relied on is as follows:
We do not think an application of this kind is an application seeking the action of the Court in execution of the decree. It may be in one sense a step-in-aid of execution of the decree, but it is not a step by the Court. Before a judgment-debtor can get any benefit he must show that he asks the Court to take some steps-in-aid of execution. A step taken by the judgment-creditor himself is not...sufficient.
8. Phillips and Madhavan Nair, JJ., then say:
This case has been followed in Kuppuswami Chettiar v. Rajagopala Aiyar I.L.R. (1921) 45 Mad. 466 : 42 M.L.J. 303. If this distinction is borne in mind, it is obvious that a statement of objections filed by the decree-holder objecting to the recording of satisfaction cannot in any way be considered to be a step-in-aid of execution.
9. The learned Judges therefore emphasise the very important distinction that there is between cases such as the one under appeal and cases similar to Krishna Pattar v. Seetharama Pattar I.L.R. (1926) 50 Mad. 49 : 51 M.L.J. 480. The judgment-creditor must show that he asks the Court to take some steps-in-aid of execution. Merely filing a statement is not asking the Court to take a step-in-aid of execution. In the present case, the judgment-creditor has asked the Court to take some step. The question is, would that step aid execution? To summon witnesses with the object of removing the judgment-debtor's objection, in my view, clearly aids execution. I do not think that I can put the point better than Bhide, J., does in Rain Chand v. Dyal Singh A.I.R. 1929 Lah. 335 He there says:
The expression step-in-aid has not been defined in the Limitation Act but I am unable to see any good reason why an application by the decree-holder to get rid of the objection raised by a judgment-debtor which stand in the way of execution of his decree should not be looked upon as a step-in-aid. When objections are raised to execution by a judgment-debtor a decree-holder has first to get rid of them for the further progress of the proceedings. In fact he will not be able to take any positive action for attachment, sale etc., until and unless the objections are removed. An application for resisting or removing the objections, therefore, does aid execution in this manner and I do not see why it should be excluded from the scope of Article 182(5) Limitation Act.
10. Pakenham Walsh, J., in his judgment says:
I entirely agree with the reasoning of the learned Subordinate Judge that if the counter itself, the most important document without which none of the subsequent proceedings in execution could lake place, is not a step-in-execution none of the subsequent steps in removing the obstruction can be steps-in-aid.
11. With respect I am unable to follow this line of reasoning, namely, that because something earlier is not a step-in-aid something later which follows it therefore cannot be. It may be that the counter affidavit without anything more leaves the execution proceedings where they are, but the summoning of witnesses carries the case well beyond that stage and leaves the Court in a position to decide upon the evidence of the witnesses summoned whether the execution should proceed or not which a mere affidavit may not do. An application to the Court with this object in view is a different thing altogether from the mere filing of an affidavit. As I have stated before, there are no decisions of this High Court directly bearing on this point and, in the absence of any, I am content to follow the decisions of the four other High Courts which do bear directly on the point and to which reference has already been made. I think that it is most desirable that upon such a question as this the High Courts in India should be in agreement and, further-more, those decisions, in my opinion, are founded on obvious commonsense. Both the second appellate Court and the first Court were in error here. In view of my opinion on this first point, it is unnecessary to discuss the other points relied upon by the appellant as limitation has been saved by the presentation of the batta application. The result is that this Letters Patent Appeal must be allowed with costs here and in second appeal and the order of the Subordinate Judge restored and the petition remanded to the execution Court for disposal according to law.
12. I agree.