Dwarkadas Gobindram Firm vs Saligram Rekhraj Firm

Fazl Ali, J.—This is an appeal by a decree-holder from an order passed by the Subordinate Judge of Chaibassa, dismissing his petition for execution on the ground of limitation. The decree which is sought to be executed was passed by the Subordinate Judge of Wardha on 21st January 1932. On 1st March 1932, the appellant applied to the Subordinate Judge to transfer the decree to Jamshedpur for execution and his application was granted on 14th March 1932. The appellant however took no steps at Jamshedpur and so the decree could not be executed. On 4th March 1935, he made a second application to the Subordinate Judge at Wardha in which he asked him to re-call the proceedings from Jamshedpur so that the decree might be executed at Wardha.

The Subordinate Judge however before passing any final order on the petition wanted to be satisfied that the decree had not been executed at Jamshedpur and the decree-holder filed an affidavit to this effect on 5th March 1935. Thereupon the Subordinate Judge of Wardha issued a warrant of arrest against the judgment-debtor as was prayed for by the decree-holder. The judgment-debtor, however, could not be arrested and the execution proceedings were struck off on 3rd May 1935. On 9th November 1935 the decree-holder made a third application to the Subordinate Judge at Wardha asking him to transfer the decree once more to Jamshedpur. This application was granted and the decree was transferred on 21st November 1935. On 9th July 1936 the present application for execution was filed at Jamshedpur but it was opposed by the judgment-debtor on the ground of limitation. His contention was that the application made by the decree-holder on 4th March 1935 before the Subordinate Judge at Wardha asking him to re-call the execution proceedings from Jamshedpur was not an application made to the "proper Court" and therefore did not save limitation under Article 11, Limitation Act. This contention has been upheld by both the Courts below and hence this appeal.

The Courts below have relied mainly on the well-known case in Maharaja of Bobbili v. Narasaraju Peda Baliara Sinhulu A.I.R (1916) P.C. 16 in which it was held by the Privy Council that when a decree passed by a District 1 Court had been sent to the Court of a Munsif for execution and had not been returned to that Court, an application for execution made in the first Court was not an application to the proper Court and therefore did not save limitation. This case has been much discussed in recent times and while some of the Courts have rigidly followed it and held that until the Court to which a decree is transferred for execution sends to the transferring Court the certificate u/s 41, Civil P.C., the latter Court cannot entertain an application for execution; it has been laid down in certain cases that even after the decree has been transferred to another Court, the Court which passed the decree is not precluded from entertaining an application for ''execution under certain circumstances, as or instance, when the decree-holder proposes a different mode of execution or wishes to proceed against a different property. It has also been pointed out in some cases that the point on which the Privy Council rested their decision in Maharaja of Bobbili v. Narasaraju Peda Baliara Sinhulu A.I.R (1916) P.C. 16 was that the decree-holder wished to sell in that case certain land which was within the jurisdiction not of the District Court but within the jurisdiction of the Munsif to whom the decree had already been sent for execution: see Rajani Kanta Pattadar Vs. Kazi Saiyed Golam Mahiuddin and Others, and Fatechand Rampratap v. Jitmal Rupchand A.I.R (1929) Bom. 418. In my opinion it is unnecessary for the purpose of deciding this appeal to discuss the divergent views which have been expressed with reference to Maharaja of Bobbili v. Narasaraju Peda Baliara Sinhulu A.I.R (1916) P.C. 16.

The point on which all the Courts are agreed is that the Court when it transfers the decree for execution does not thereby altogether lose control over the decree, but may still pass certain orders in connexion with execution. For instance, it has power to stay execution, to make an order for simultaneous execution by another Court and to decide an objection as to limitation if referred to it by the Court to which the decree has been transferred for execution. Again, if after a decree has been transferred for execution the judgment-debtor dies, the Court which passed the decree is, by Section 50, Civil P.C., the proper Court to order that execution should proceed against the legal representative. These being admittedly the powers of the transferring Court, the question as to whether it has the power to re-call the execution proceedings from the Court to which the decree has been transferred for execution admits of one answer only and it is that prima facie such power must exist, because if the Court can transfer the decree it must also have the power to bring it back. The point seems to have been directly raised in B.N. Lang Vs. Jasvantlal Hathichand, and was answered by Macleod C. J. in the following words:

It is true that u/s 41 of the Code a Court to which a decree is sent for execution shall certify to the Court which passed it the fact o� such execution or where the former Court fails to executa the same, the circumstances attending such failure. But it cannot possibly be deduced from the provision of that Section that once the Court which originally passed the decree has sent it for execution to another Court, it has no power to order that the decree be returned.

The same view is strongly suggested by the decision of the Allahabad High Court in Abda Begam v. Muzaffar Husen Khan (1898) 20 All. 129 and of this Court in Sheshaiyer Rajamanner Aiyer Vs. Madanmohan Patnaik, and the observations made by Skemp J. in Kanti Narain v. Madan Gopal A.I.R (1935) Lah. 465. Now, once it is held that the Court which has transferred the decree to another Court has the power to re-call the execution proceedings from that Court, the application made by the decree-holder on 4th March 1935 must be held to be a step-in-aid of execution made in accordance with law before the proper Court. The expression "proper Court" has been somewhat loosely defined in Expl. 2 of Article 182 "as the Court whose duty it is to execute the decree."

It was contended before us on behalf of the appellant that this definition was wide enough to include a Court which has already transferred a decree for execution to another Court. In view however of the authorities on the subject, it appears to me to be not permissible to give to this expression the wide meaning attributed to it on behalf of the appellant. But if the Court which has transferred the decree has the power to execute it after it has been re-called, it must be held that the Court at Wardha was the "proper Court" for dealing with the application which was made by the decree, holder in this case on 4th March 1932. In my opinion the application of the decree-holder dated 4th March 1932 was made to a proper Court and so it saves limitation.

I would therefore allow this appeal, set aside the orders of the Courts below and direct that the execution may be proceeded with. The appellant decree-holder will be entitled to his costs in this Court as well as in the Courts below.

Agarwala J.

I agree.