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The President, Union Board and anr. Vs. Sreemath Thirumala Venkata Srinivasacharyalu Ayyavarlu and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in159Ind.Cas.544; (1935)69MLJ785
AppellantThe President, Union Board and anr.
RespondentSreemath Thirumala Venkata Srinivasacharyalu Ayyavarlu and ors.
Cases Referred and Sujan Singh v. Hira Singh I.L.R.
Excerpt:
- .....decree was passed on the 21st february, 1928. on the 13th august, 1930, rs. 1,200 was paid to the decree-holder out of court and another rs. 1,300 on the 24th march, 1931. up to that time no execution petition had been filed. the first execution petition filed in the case at all was e. p. no. 98 of 1933 filed on the 25th september, 1933. the objection taken by the respondents who were judgment-debtors and sureties for the judgment-debtors was that the execution petition was barred by limitation. the decree-holder relied upon m. p. no. 337 of 1930 which was a petition filed in the sub-court, ellore on the 29th september, 1930, and which runs as follows:for the reasons stated in the accompanying affidavit the petitioner prays the hon'ble court may be pleased to record a payment of rs......
Judgment:

Burn, J.

1. We consider that the decision of the learned Subordinate Judge is undoubtedly correct. The facts are that the decree was passed on the 21st February, 1928. On the 13th August, 1930, Rs. 1,200 was paid to the decree-holder out of Court and another Rs. 1,300 on the 24th March, 1931. Up to that time no execution petition had been filed. The first execution petition filed in the case at all was E. P. No. 98 of 1933 filed on the 25th September, 1933. The objection taken by the respondents who were judgment-debtors and sureties for the judgment-debtors was that the execution petition was barred by limitation. The decree-holder relied upon M. P. No. 337 of 1930 which was a petition filed in the Sub-Court, Ellore on the 29th September, 1930, and which runs as follows:

For the reasons stated in the accompanying affidavit the petitioner prays the Hon'ble Court may be pleased to record a payment of Rs. 1,200 in part satisfaction of the decree.

2. The Court on 27th October, 1930, passed the following Order:

Allowed. Memo would have been sufficient.

3. The only question is whether this petition, M.P. No. 337 of 1930, was an application within the meaning of Article 182(5) of the Limitation Act to take a step-in-aid of execution. The learned Subordinate Judge decided that it was not an application to take a step-in-aid of execution. Mr. Kameswara Rao for the appellant admits that there is no decision of any Bench of this Court to the contrary. He has referred us to the decisions of two single Judges reported in Narayana Nair v. Kunhiraman Nair (1924) 20 L.W. 190 and Chattu Kutty v. E. Raman : AIR1933Mad674 . Those were cases which did not deal expressly with this point, but in which the Judges made remarks obiter indicating that they considered such applications to be applications to take a step-in-aid of execution. Mr. Kameswara Rao has also referred us to the cases reported in Tarini Dass Bandyopadhya v. Bishtoo Lal Mukhopadyaya I.L.R.(1886) 12 Cal. 608 and Sujan Singh v. Hira.Singh I.L.R.(1890) 12 All. 399 (F.B.) in which it was held that such applications are applications to take a step-in-aid of execution. It is clear, however, that those decisions have lost much of their force after the decision of the Privy Council reported in Rajah Shri Prakash Singh v. Allahabad Bank, Ltd. . Their Lordships of the Privy Council have stated that they did not decide this point expressly but from the whole tenor of their judgment it is apparent that the authority of the rulings in Tarini Dass Bandyopadhya v. Bishtoo Lal Mukhopadyaya I.L.R.(1886) 12 Cal. 608 and Sujan Singh v. Hira Singh I.L.R.(1890) 12 All. 399 (F.B.) is very seriously impaired. Their Lordships have observed that under Order 21, Rule 2(1), Civil Procedure Code, the decree-holder does not really make an application to the Court at all. What he does is to report that a payment towards the decree has been made out of Court. Thereupon the Court, whether the decree-holder applies to the Court to do so or not, is obliged to record satisfaction, partial or complete as the case may be. It is not necessary for the decree-holder to ask the Court to do anything. In the present case, as we have already observed, the petitioner prayed the Hon'ble Court to be pleased to record the payment. To that extent it may be said that he did make an application. But how can this be said to be an application to take a step-in-aid of execution? Mr. Kameswara Rao is not able to adduce any convincing argument on this point. The reasoning in the judgments reported in Tarini Dass Bandyopadhya v. Bishtoo Lal Mukhopadyaya I.L.R.(1886) 12 Cal. 608 and Sujan Singh v. Hira Singh I.L.R.(1890) 12 All. 399 (F.B.) is, we say with all respect, not clear to us. The words 'application to take a step-in-aid of execution' are extremely simple words and we find no difficulty in understanding them. If the Court is asked to take a step-in-aid of execution, it must, we think, be a step which will bring execution nearer by however so little it may be. In this case all that the Court is asked to do is to record the payment of Rs. 1,200 in part satisfaction of the decree. It is clear that when the payment is recorded the execution of the decree is not advanced in even the slightest decree. We agree therefore that this petition M.P. No. 337 of 1930 was not an application to the Court to take a step-in-aid of execution and therefore the decision of the learned Subordinate Judge that the execution petition filed on 25th September, 1933, was barred by limitation is correct. This appeal is accordingly dismissed with costs.


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