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President, Union Board and anr. Vs. (Sreemath) Thirumala Venkata Srinivasacharyulu Ayyavarlu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1936Mad118
AppellantPresident, Union Board and anr.
Respondent(Sreemath) Thirumala Venkata Srinivasacharyulu Ayyavarlu and ors.
Cases Referred and Sujan Singh v. Hira Singh
Excerpt:
- .....that the decree was passed on 21st february 1928. on 13th august 1930, rs. 1,200 were paid to the decree-holder out of court and another rs. 1,300 on 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 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 29th september 1930 and which runs as follows:for the reasons stated in the accompanying affidavit the petitioner, prays the honourable court may be pleased to record a payment of rs. 1,200 in part.....
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 21st February 1928. On 13th August 1930, Rs. 1,200 were paid to the decree-holder out of Court and another Rs. 1,300 on 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 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 29th September 1930 and which runs as follows:

For the reasons stated in the accompanying affidavit the petitioner, prays the Honourable 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.' The only question is whether this petition, M. P. No. 337 of 1930, was an application within the meaning of Article 182(5), Lim. 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 1925 20 MLW 190 and Chathukkutty v. E. Raman 1933 Mad 674. 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 Bass v. Bishtoo Lull (1886) 12 Cal 608 and Sujan Singh v. Hira Singh (1890) 12 All 399 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 Shri Prakash Singh v. Allahabad Bank Ltd 1929 3 Luck 684. 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 Bass v. Bishtoo Lull (1886) 12 Cal 608 and Sujan Singh v. Hira Singh (1890) 12 All 399 is very seriously impaired. Their Lordships have observed that under Order 21, Rule 2(1), Civil P.C. 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.

3. In the present ease, as we have already observed, the petitioner prayed the honourable 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 judgment reported in Tarini Bass v. Bishtoo Lull (1886) 12 Cal 608 and Sujan Singh v. Hira Singh (1890) 12 All 399 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 slighest degree. 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.

4. This appeal is accordingly dismissed with costs.


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