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Firm Ramnarayan-jagannath Vs. Radhagovinda Debnath - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1940Cal557
AppellantFirm Ramnarayan-jagannath
RespondentRadhagovinda Debnath
Cases ReferredChutterpat Singh v. Sait Sumari Mull
Excerpt:
- .....182(5), limitation act, show that, in order to save limitation in the case of the execution of a decree passed by a court subordinate to this court, an application for execution must be filed within three years of the final order made either in connexion with a previous, application for execution made in accordance with law, or within a similar period of the final order passed on an application to take some step in aid of execution. in my view, the law clearly contemplates that, if a decree is legally capable of being executed, a decree-holder may either apply for its execution by filing an application under order 21, rule 11, civil p.c., or apply for some step to be taken in furtherance of any execution proceedings which he may thereafter think it necessary to initiate, and in the.....
Judgment:

Edgley, J.

1. This appeal is directed against the order of the learned District Judge of Bakergunj, dated 28th February 1939, in which he held that a certain application for execution was time-barred. The decree-holder is the appellant in this case and he was seeking to execute a decree which he had obtained in the Presidency Small Cause Court on 23rd July 1926. It appears that an application for the execution of this decree, which the decree-holder had filed on 16th July 1929 was dismissed for default on 30th September 1929. Thereafter, the record shows that the decree was sent on three occasions to the Court of th6 Munsif of Bhola for execution, viz., on 13th December 1929, 5th December 1932 and 4th December 1935, but on each occasion the decree appears to have been returned unexecuted. The application for execution with which we are now concerned was filed on 23rd July 1938, and it is contended on behalf of the judgment-debtor that this application must be treated as time-barred as it was not filed within three years of the final order in the preceding execution case, which was passed on 30th September 1929. In this connexion, it is argued that the subsequent proceedings under which the decree was transmitted to the Court of the Munsif of Bhola for execution cannot be regarded as steps in aid of execution. The last of the orders under which the decree appears to have been transmitted to Bhola for execution is dated 4th December 1935; and it is clear that, if this order can be regarded as an order in connexion with an application to take some step-in-aid of execution within the meaning of Article 182(5), Limitation Act, the application for execution which was filed on 23rd July 1938, will not be time-barred.

2. In the first place, it is argued that these orders transferring the decree to the Bhola Court for execution should not be regarded' as steps-in-aid of execution because, on the material dates, no execution case was actually pending. In support of this argument reliance is placed upon some observations of C.C. Ghose J. in Amar Krishna v. Jagatbandhu Biswas : AIR1931Cal719 . In that case the learned Judge observed that

to take some step-in-aid of execution must mean some proceeding to obtain an order of the Court in furtherance of the execution of the decree it must be remembered that a step-in-aid of execution can only be taken in the course of an execution proceeding which is pending or capable of being kept alive and there can be no step-in-aid of execution where the execution itself is already barred.

3. In the case with which we are now dealing it seems to be clear that the orders for the transfer of the decree to the Munsif's Court of Bhola, which were made on 13th December 1929, 20th December 1932, and 4th December 1935, must have been made in the ordinary course of business in pursuance of applications which were filed under Section 31, Presidency Small Cause Courts Act. Further, there is no doubt that, at the time when these orders were passed, the decree which it was sought to execute was still capable of being kept alive although no application for execution may have been pending at the time. The provisions of Article 182(5), Limitation Act, show that, in order to save limitation in the case of the execution of a decree passed by a Court subordinate to this Court, an application for execution must be filed within three years of the final order made either in connexion with a previous, application for execution made in accordance with law, or within a similar period of the final order passed on an application to take some step in aid of execution. In my view, the law clearly contemplates that, if a decree is legally capable of being executed, a decree-holder may either apply for its execution by filing an application under Order 21, Rule 11, Civil P.C., or apply for some step to be taken in furtherance of any execution proceedings which he may thereafter think it necessary to initiate, and in the latter case, it is not necessary that an application for execution should actually be pending at the time when he files his application. For instance, the decree-holder would adopt a perfectly valid procedure if he applied in a suitable case to the Court which passed the decree for the transmission of the decree to another Court for execution and, after this transfer had been effected, applied to the transferee Court for the execution of the decree : Srinath Chakrabarti v. Priyanath : AIR1931Cal312 .

4. The main question for decision, therefore, in connexion with this appeal is whether an application to transfer a decree to another Court for execution should be regarded as a step-in. aid of execution. To my mind there can be no doubt that such an application must be regarded as an application to take some step-in-aid of execution and this is the view which was adopted by this Court in Rajbullabh Sahai v. Joy Kishen ('93) 20 Cal 29, Chundra Nath v. Gurro Prosunn ('95) 22 Cal 375 and Ahed Bux v. Kinkar Chandra : AIR1935Cal640 . In this connexion, it was observed by Mukerji J. in Srinath Chakrabarti v. Priyanath : AIR1931Cal312

a mere application to have a decree transferred to another Court is not an application for execution Khetpal v. Tikam Singh ('12) 34 All 396, but we do not think it has ever been held that it is not a step-in-aid of execution; in fact it is the first step that the Court which passed the decree is called upon to give to a decree-holder who stands in need of it when execution has to be had in a different Court.

5. In support of his contention that an order on an application for the transmission of a decree does not save limitation the learned advocate for the appellant places some reliance on the decision of this Court in Chutterpat Singh v. Sait Sumari Mull ('16) 3 A.I.R. 1916 Cal 488, which was approved by the Privy Council in Banku Behari Chatterji v. Naraindas . The decision in Chutterpat Singh v. Sait Sumari Mull ('16) 3 A.I.R. 1916 Cal 488, however, depended on the question whether a certain order made by the Registrar, in pursuance of which a decree passed on the original side of this Court was transmitted to another Court for execution, constituted a revivor within the meaning of Article 183, Lim. Act. It was held that to constitute a revivor of the decree there must be expressly or by implication a determination that the decree is still capable of execution, that such determination must be by a Court or by a person duly qualified to make it and that the Registrar was no clothed with the requisite authority for this purpose. The Chief Justice pointed out in his judgment that the condition under which limitation may be saved in Articles 182 and 183, Lim. Act, are essentially different and Mukherji J. also observed that it was not necessary in that case to decide whether an application for transmission of a decree might not be deemed an application to take a step-in-aid of execution within the meaning of Article 182(5), Limitation Act. In the case with which we are now dealing there is no question of the revival of a decree of a Court established by Royal Charter within the meaning of Article 183, Limitation Act. It follows therefore that the decision in Chutterpat Singh v. Sait Sumari Mull ('16) 3 A.I.R. 1916 Cal 488 is of no assistance to the appellants.

6. Finally, it has been urged that a transmission order made by the Registrar of the Small Cause Court cannot be regarded as a judicial order on an application made in accordance with law. In this connexion, I have already referred to the provisions of Section 31, Presidency Small Cause Courts Act, from which it would appear that transmission orders in the Presidency Small Cause Court are only made on the application of the decree-holder. It must therefore be presumed in this case that such an application was duly made. In my judgment the language of Section 35 of the Act is sufficiently wide to empower the Registrar to make any order in respect of execution matters 'which a Judge of the Court might make under this Act.' I do not think therefore that there is any force in this argument which has been put forward on behalf of the respondent. It follows therefore that the application for execution which was filed on 23rd July 1938 cannot be regarded as time-barred as it was filed within three years of the last order passed on an application to take some steps in aid of execution and thus fulfils the requirements of Article 182(5), Limitation Act. The judgment of the lower Appellate Court must therefore be set aside. This appeal is allowed with costs throughout and it is ordered that execution do proceed. The hearing fee in this Court is assessed at two gold mohurs. Leave to appeal under Clause 15 of the Letters Patent is refused.


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