Budhavarapu Venkata Surya Gopalam and Others vs Adivi Bapiraju and Others

Ansari, J.

The appellants before us are the decree-holders, whose execution petition has been found to be barred by limitation. The execution petition earlier to the one so found had been dismissed on May 8, 1947, but the decree-holders had during its pendency filed Ex. A. 210/47 that was received in Court on April, 10, 1947. Thereby they had asked that the upset price fixed by the court in respect of the properties ordered to be sold should be reduced. The application had stated that May 5, 1947 had been fixed as the date for the sale at the mortgaged properties in order to realise the decretal amount, that the properties were lands subject to submersion, that there were several de-crees against the defendant, and that the upset price for the lands in the first item should be reduced to Rs. 500 from Rs. 7,000; in the second Item to Rs. 200 from Rs. 1,400; in the third item to Rs. 200 from 1,800; in the fourth item to Rs. 200 from Rs. 400.

The application then stated that if the sale be held with the upset price as already fixed, none would come and the decretal debt would not be realised. Though the main execution petition had been dismissed earlier, the Ex. A. 210/47 was rejected on July 28, 1947, The next execution petition for the sale of the hypotheca is dated July 26, 1950 and is obviously beyond three years of the final order on the earlier execution petition. The appellants, however, rely on the order rejecting Ex. A. 210/47, which is within three years of the next execution petition and they claim it as saving the limitation. Their case is that the application and the order on it are covered by Clause (5) of Article 182 of the Limitation Act that reads as follows:--

"Where the application next hereinafter mentioned has been made, the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order."

The District Munsiff has held that the execution petition was barred because the order passed on Ex. A. 210/47 was not provided for by the CPC and could not be regarded as step in aid of execution. The appellate court has agreed with the view. The learned Judge, who heard the second appeal, has firstly decided that if the application be one to take a step in aid of execution, a fresh period of limitation would start from the date of the final order on it, and the pendency of any execution petition would not be necessary. In this connection he has relied on Ayi Goundan and Another Vs. Solai Goundan and Another, He has fur ther found that the majority of the cases cited before him were not directly relevant, as they rid not deal with the question arising in the appeal.

He has further held that Order 21 Rule 66 ot C.P.C. does not provide for fixing any upset price in the sale proclamation and the price had been apparel fixed because of Sub-rule 2 of Rule 199 of the Madras Civil Rules of Practice, which provision the learned Judge found to be opposed to Clause (e) of the Madras amendment to Sub-rule 2 of O. 21 R. 66 C. P, C. and to be void. In this connection he has relied on A.M.A. Murugappa Chettiar Vs. S.M.A.M. Ramasami Chettiar and Others, and Arunachala Reddiar Vs. Muthusadasiva Mudaliar and Others, . The learned Judge has also found Ex. A. 210/47 not to be a step in sid ot execution and for doing so he has applied the test laid in Masilamani Mudaliar Vs. Sethuswami Aiyar and Another, where Ku-maraswami Sastriyar, J., has at p. 255 (of ILR Mad): (at p. 622 of AIR) observed as follows:-- .

"In order that an oral application may be effective as a step in aid of execution the application must be one which it is necessary to make in order to get the main reliefs prayed for in the execution petition. It must be of such a nature that, if the application were not made, further proceedings in execution would not be taken either by reason of the specific prayer not being con tained in the execution application or by reason of the Code or the rules or practice requiring some further acts to be done before the main reliefs prayed for in the execution application can be granted or enforced."

The learned Judge of this Court in dismissing the second appeal has finally held that none of the aforesaid tests applied to the Ex. A. 210/47; for the application was to reduce upset price when no sale was pending and therefore it could not be a step in aid of execution. It is clear that the conclusion about there being no pending sale in the case is not accurate, for when Ex. A. 210/47 was received in Court the order dismissing the execution petition has not beer made. At 1 any rate the Full Bench decision in Ayi Goundan and Another Vs. Solai Goundan and Another, is decisive that the pendency of an execution petition is not necessary to constitute an application a step in aid of execution. It is equally clear that the test for ascertaining whether an application amounts to a step-in-aid is to find out whether the application be in furtherance of the execution proceedings under 3 decree. The same was described by Burn, J. in President, President, Union Board and Another Vs. (Sreemath) Thirumala Venkata Srinivasacharyulu Ayyavarlu and Others, in these words:--

"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."

That appears to us to also follow from a number of other decisions. Thus in Annamalai Mudaliar v. Ramaier ILR Mad 234 a transferee decree-holder had presented a petition stating that be had obtained an assignment of the decree, when recognised he would have, to obtain an order absolute, file an execution petition and ask the Court to pass such an order, which was ordered. Three years later he applied for an absolute order under the then Section 89 of the Transfer of Property Act and it was held that the petition was clearly a step in aid. Again in Desireddi Yellamander Vs. Sekhakolli Chinna Pitchaiah, an application by the decree-holder for continuance of the sale in order to secure the attendance of more bidders was held to be a step in aid of the execution.

In Abdul Kadir Rowther v. Krishna Malam-mal Nair ILR Mad 695 : AIR 1914 Mild 384 an application for an adjournment to enable the decree-holder to produce evidence necessary to effectively conduct the execution proceedings further was treated as an application to get an order in aid of execution. In Sankara Nainar Pillai and Others Vs. Puthiya Veettil Thangamma and Others, there was an application by a mortgagor for ex-tension of time to pay money due under a decree for redemption which had provided for sale in default and it was held as a step in aid of execution under Article 182 Clause (5) of trie Limitation Act. In Sankara Nainar Pillai and Others Vs. Puthiya Veettil Thangamma and Others, Spencer, J. observed at p. 203 (of ILB Mad): (at p. 247 of AIR):

"If they were in any sense aids to execution, they should be treated as steps in aid of execution."

The application in Srinivasa Ayyangar v. Narayana Rao ILR Mad 1014 : (AIR 1923 Mad 72) lor transmission of the decree from the Mysore Court was held to be one to take a step in aid of execution of the decree so as to save the oar of limitation. In Surajmal v. Sarjoog Prasad Singh 38 IC 540 : AIR 1917 Pat 698 a decree-holder made bona fide oral application to have the form ot sale proclamation corrected and to have a date fixed for settling the terms of the proclamation under Order 21, Rule 66. He also requested that a notice should be issued for a specified date and the Court held the application to be a step in aid of execution.

In Vappu Rowther Vs. Sivakataksham Pillai, an application for leave to bid and to set off the price against the decree amount filed by a decree-holder was held to be covered by Article 182(5). The facts in Chikka Veerappa Setti Vs. Sarkaru Muniswami Achari and Others, were that a decree-holder had put in an execution application for the transfer Of the decree to another Court and the judgment-debtor had contested the application saying the decree to be fully satisfied and the decree-holder filed a batta application to summon witnesses for showing the objection to be untrue. This application was treated to be a step in aid of execution.

In T. Sankara Menon and Others Vs. T.V. Sundara Aiyar, an application by a decree-holder for delivery of possession of the immovable property purchased by him in a sale held in execution of a decree was found to be a step in aid of the execution of the decree. We would conclude the list of cases by citing Ramachandnidu v. Gulab Chand Finn (1957) 2 A WR 169 : (AIR 1958 A P 709) where an order made tor retransmitting the decree to the original Court was held to be a step in aid of execution within the meaning of Art. 182(5). We therefore think that the test for the purpose very broadly speaking is whether the application seeks something in furtherance of the execution or what is the same thing in a different form whether the application prays for removal of some obstacle from the way of the execution. It is clear that Ex. A. 210/47 was filed with the express object of reducing what according to the decree-holder was excessive amount for the upset price which was deterring persons from bidding at the sale. In these circumstance lances we do not think that the application can be treated as any thing but a step in aid of execution.

Two further questions have to be decided and the first of these is whether Ex. A. 210/47 is in accordance with law. In this connection any discussion of Rule 199 of the Civil Rules of Practice being void is hardly necessary for where price for which the property is to be sold is mentioned in a sale proclamation evidently the Courts think that to he the value of the property. Once that is done the Court comes under the obligation to see the value to be correct and this follows from the observation of the judicial Committee in Saadat-mand Khan v. Phul Kuar 25 I A 146 :

''''Whatever material fact is stated in the proclamation (and the value of the property is a very material fact) must be considered as one of those things which the Court considers material for the purchaser to know", and it is enacted in terms (though express enactment is hardly necessary for such an object) that those things shall be stated as fairly and accurately as possible."

Therefore any application to make a correction in respect of such a thing would be one in accordance with law and the duty being of the Court would hardly be material, as the decree-holder would initiate the proceeding to correct. In this connection a reference to what Garth, C. J. said in Ambica Pershad Singh v. Surdhari Lal ILR Cal 851 would be useful. The learned Judge observed as follows at page 856:

".....He contended that u/s 287 of the Code, the Court itself was bound to have issued the proclamation, without any action being taken on the part of the decree-holder.

But in this, I think, he is in error; notwithstanding that the attachment had issued, the proceedings from time to time for the purpose of enforcing the sale must always be, and, as a matter of practice, always are, initiated by the decree-holder."

We therefore think that the application for correcting what the decree-holder thought to be an error in the proclamation was one for invoking a judicial exercise of power by the Court and to be in accordance with law.

The last point in the appeal Is how far the order rejecting the application was final. It had certainly concluded a proceeding and its finality is in no way affected by its having rejected the application; for it is now well settled by P.P.P. Chidambara Nadar Vs. C.P.A. Rama Nadar (deceased) Pichaimani alias Arunachalam by guardian Thillai Ammal as L.R. of the deceased and Others, that an order rejecting the execution petition is a final order with in the meaning of Article 182(5) of the Limitation Act. Therefore the appeal is allowed, the three judgments in the case are set aside and the case is remanded to the executing court for decision of other questions arising in the case. Costs will abide the final result in the case.