Annamalai Mudaliar vs Ramaier and Others

In this case, the appellant, a transferee decree-holder, on the 2nd December 1901, presented a petition u/s 232, Civil Procedure Code, in which, after stating that he had obtained an assignment of the decree and that when recognised as transferee-plaintiff, he would have to obtain an order absolute and then file an execution petition, he prayed the Court to pass an order recognising him as assignee-plaintiff in the suit. It was ordered accordingly on the 5th July 1902. On the 11th March 1904, the appellant applied for an order absolute u/s 89 of the Transfer of Property Act, but the lower Court held the application to be barred as more than 3 years had elapsed since the date of the decree (5th August 1900) and the application of the 2nd December 1901 was not, in the opinion of the Court, an application to take a step in aid of execution in accordance with law within the meaning of Clause 4 of Article 179 of the 2nd Schedule to the Indian Limitation Act. We are unable to agree with this conclusion. The petition, as appears from its terms, was intended as a step in aid of execution as it sought the recognition by the Court of the petitioner''s right to execute the decree, which recognition it was open to the Court to grant, or withhold. The question then arises : Was it an application in accordance with law? It is no doubt true as pointed out by Sir Bhashyam Aiyangar J. in Ramachendra Aiyar v. Subramania Chettiar (1903) 14 M.L.J. 393 that Section 232, Civil Procedure Code, does not provide for any application in this form but contemplates that the transferee should apply for execution of the decree without any preliminaries of this kind, merely giving notice of the application to the transferor and the judgment-debtor. Consequently, when instead of applying for execution the appellant put in his application for recognition as transferee, the Court might have returned the petition to him for amendment as not in accordance with the section. Instead of doing this, the Court made the order prayed for and the appellant did not appeal against it as he might have done. Under these circustances, the application must be taken to have been in accordance with law. It was clearly a step in aid of execution, and, as it must be taken to have been in accordance with law, the present application is not barred. We may also observe that it has recently been held in Pitam Singh v. Tota Singh ILR (1907) A. 301 that an application for recognition by a transferee-decree-holder is an application to take step in aid of execution in accordance with law. We must, therefore, set aside the order of the lower Court and remand the case to it for disposal Recording to law. The respondents will pay the appellant the cost''s of this appeal.