Bhagwat Sahay vs Ram Sukrit Ram

Wort, J.—This is an appeal from a decision of the District Judge dismissing summarily an appeal preferred before him which raised a question relating to execution. I am surprised that the learned Judge so acted having regard to the rather important question of law which arose. Shorn of all unnecessary details, the decree-holder obtained a decree on 7th June 1931 and made this application in execution on 5th July 1935. It is clearly seen from these dates that the application in execution would be barred but for the contention by the decree-holder that an order made on 8th July 1932 was made in aid of execution and thus saved limitation under Art. 182, Cl. (5) of Col. 3. Without authority I should have very little hesitation in coming to the conclusion that the application for transferring the decree from one Court to another and the order thereon of 8th July 1932 was not in fact a step in aid of execution. But I am met with a decision of a Division Bench of this Court in 3 P L T 298 Ramchandra Marwari v. Krishna Lal Marwari, 1922 Pat 301 = 65 I C 332 = 1 Pat 328 = 3 P L T 298. I had occasion to refer to this authority, and there came to the conclusion that the decision of their Lordships of the Privy Council in 54 I A 129 Banku Behari v. Naraindas Dutt, 1927 P C 73 = 101 IC 24 = 54 I A 129 = 54 Cal 500 (P C) in effect overruled the decision of this Court to which I have referred. But it must be noticed that in 1934 Pat 662 Gopal Tewari v. Ramdhari Pandey, 1934 Pat 662 = 152 I C 987, although coming to the conclusion just stated, it was unnecessary to decide the point for the reason that the case went off on another question. I should have found myself in some difficulties had it not been otherwise.

The position is this: that in 54 I A 129 Banku Behari v. Naraindas Dutt, 1927 P C 73 = 101 IC 24 = 54 I A 129 = 54 Cal 500 (P C) their Lordships of the Privy Council were considering Art. 183, Limitation Act, and whether a decree had been revived within the meaning of Col. 3 of that Article. Their Lordships of the Privy Council, in the opinion expressed by Lord Phillimore, came to the conclusion that an order made on the original side of the Calcutta High Court transmitting the decree or order for execution to a subordinate Court was a ministerial act and therefore could not be considered to have revived the decree within the meaning of the article under consideration. Now, I must say that in the decision of my own to which reference has been made I was much pressed by the view stated by their Lordships of the Privy Council, and it seemed to me that the inevitable conclusion to be derived from that decision was a conclusion contrary to that arrived at by this Court in 3 P L T 298 Ramchandra Marwari v. Krishna Lal Marwari, 1922 Pat 301 = 65 I C 332 = 1 Pat 328 = 3 P L T 298 to which I have referred. But I must not forget that the decision of their Lordships of the Privy Council was on Art. 183 and not on Art. 182, Limitation Act, and, therefore, on the fundamental principle upon which the authorities have to be considered, the decision cannot be considered as a decision on the Article which I have now under consideration. I must confess that the case before me seems to be a fortiori and for reasons which I shall in a moment state; but in the meantime I content myself with saying that whatever my view may be, and however strongly it may be held, I am met with the Division Court decision of this Court which is binding upon me.

As this case will go further, and I hope it will, I wish to express my view shortly. In this case we are considering para. 5 of Col. 3 in Art. 182. Now, Sir Dawson Miller, if I may be allowed to say so with respect, treated the matter (and I should like to say that I have often been tempted to treat the matter in the same way) that para. 5 of the Article gave a fresh start to the decree-holder from the date on which he took some step in aid of execution. Now that is contrary to the Article. The Article does not speak of an application in aid of execution but speaks of an order made on an application as a step in aid of execution. Para. 5 of the Article provides

where the application next hereinafter mentioned has been made the date of (and then the parenthesis) the final order passed on an application made in accordance with law to the proper Court for execution of the decree or order.

What is clearly contemplated by the Article is that a judicial order is to be made on an application by the decree-holder being a step in aid of execution : in other words, the date from which a fresh start is given is the date upon which the judicial order is made on the application as a step in aid of execution. Whether it is to be looked at from that point of view, or whether it is to be looked at as the learned Judges of the Allahabad High Court looked at it in 34 All 396 Khetpal v. Tikam Singh, (1912) 34 All 396 = 14 I C 172, the same conclusion in my judgment results. Karamat Husain, J., and Tudball, J., there considered that in order that an application for transfer should benefit the decree holder it must be in essence in continuation : or, to put it more accurately, an application for execution cannot be considered to be in continuation of an application for transfer. Between the application for transfer made in this case on 8th July 1932 and the application for execution made on 5th July 1935 there was a gap which was fatal. There is the authority of the Allahabad High Court of later date than the one to which I have referred, but in that case no reference was made to the case of which I have made mention. The matter, however, as I have said, so far as I am concerned, is concluded by the decision of this Court in 3 PLT 298 (supra), whatever view I may hold of the matter.

Therefore, the only conclusion I can come to is that the appeal fails and must be dismissed with costs. But as the matter is of great importance and the point frequently arises, I give leave to appeal under the Letters Patent.