1. The facts are that the respondent, decree-holder, filed an application for transfer of his decree and obtained an order for its transmission. He had not filed the copies required by Order XXI, Rule 6 and when he filed them on a sub sequent date, he also again applied orally for the transmission of the decree. The question is whether this oral application was one to take a step in aid of execution and time can be calculated from it.
2. The lower Appellate Court held that it could. But, in my opinion, it misapprehended the circumstances and the authorities relied on. The material fact is that the transmission of the decree had been ordered and that order was not the less the only order, which was necessary, because the decree holder had for his own convenience been allowed to postpone filing the necessary papers, We have not been shown that any further application by him was necessary; in fact for all that appears, on his filing the papers that decree would have been transmitted. In these circumstances the facts differ from those in Visiaraghavulu Naidu v. Srinivasalu Naidu 28 M. 399 where the proclamations would not have been issued, if the batta memorandum then in question had not been filed and resemble rather those in Masilamani Mudaliar v. Sethuswami Aiyar 41 Ind. Cas. 701 where 'a mere repetition of a prior application' was in question, the only difference between the last mentioned and the present case being that in the latter the Court had passed its order. It is material that the starting point under Article 182, Schedule 1 to the Limitation Act is not the taking of a step-in-aid of execution but the application to take such a step and there was in the present case no such application as the decree-holder can rely on. The lower Appellate Court's decision must, in these circumstances, be set aside, the appeal being allowed and the order of the District Munsif being restored with costs throughout.
Seshagiri Aitar, J.
3. I agree with my learned brother; but, however, as a decision to which I was a party has been quoted in support of the respondent's contention, I wish to add a few words. The fasts are clear. An application to transmit a decree for execution which is now recognised as a step in aid of execution was made; before the record was completed an order was passed on it directing the transmission. This was on the 27th March 1911. On the 6th of July 1911, a paper which ought to have been filed before the order was passed was presented by the Vakil and he made an oral application to transmit the decree. I regard this merely as a request to expedite the transmission of the decree which was already ordered; Mr. Somaya contended that this was an application to take a step-in-aid. The application for that purpose was operated upon and an order had been passed, subject to the records being completed. The request by the Yakil was not a process which was necessary to effectuate the application. The mere filing of the paper by itself, cannot be a step; because, what the Limitation Act wants is an application to take a step. Therefore, as the remedy was superfluous and as the filing of the paper by itself was of no avail, this case comes within the principle enunciated in Masilamani Mudaliar v. Sethuswami Aiyar 41 Ind. Cas.701 .
4. Among the authorities quoted, stress was laid on two case s:--In Civil Miscellaneous Second Appeal No. 110 of 1918, it is clear that Mr. Justice Odgers and myself were not dealing with a superfluous request as in this ease. In our opinion, the application to take a step-in-aid became complete only on obtaining the recognition of the transferee, and on supplying the necessary materials on which the Court can pass orders. The order had to await the completion of the record and we held that the application to take a step must be deemed to have been finally presented only when all the papers were filed. It is clear that all this was done before the order was passed. I am obliged to add these words by way of comment to that decision lest it should be misunderstood. The other decision relied on was Vijiaraghavulu Naidu v. Srinivasulu Naidu 28 M. 399. There is one sentence in it which certainly supports the learned Vakil for the respondent. Here, again, as pointed out in Masilamani Mudaliar v. Sethuswami Aiyar 41 Ind. Cas. 701, the learned Judges seem to lay stress on the fact that the oral application was necessary. I do not wish to say anything more about that decision. It must be conceded that the language employed in some decisions has not erred on the side of perspicacity. It is time to insist upon compliance with the language of the Code therefore. Two things are essential. There must be an application and that application must ask the Court to take a step-in-aid of execution. As the learned Vakil for the appellant argued, the bare fact that a party took some steps will not be enough. There must be an application to which the steps taken can be referred. If that application is already before the Court and has been the subject of a decision or direction, any step taken subsequently will not have the force of an application to take a step; also, if the application is in the nature of a reminder, that will be of no avail, because the Court should not stand in need, legally, of reminders to do its obvious duty. For these reasons, I am of opinion that the application was barred by limitation and I agree with the order proposed by my learned brother.