Harbans Prosad Singh vs Jadunandan Rai and Others

Wort, J.—This is an appeal from an order of the District Judge of Muzaffarpur in which he held that an application for execution was barred by limitation. A decree was passed on 22nd September 1932 by the Second Munsif of Muzaffarpur. On 8th August 1935, an application was made to the First Munsif for execution. The Court required a certificate of transfer which was obtained from the Second Munsif''s Court on 9th August and filed on 29th August.

Therefore the application for execution (all other things being equal) was complete. But it was subsequently found that the properties which the decree-holder desired to attach were in Sitamarhi district and a further application for transfer was made, but at a time which was beyond three years of the date of the decree. Unless the decree-holder can take advantage of the applications before the Second Munsif and the First Munsif of Muzaffarpur, he is clearly barred by limitation as the Judge in the Court below has held.

I should have stated that the trial Court had held that the application for execution could not proceed or at least, the sale was not valid by reason of the fact that there were irregularities inasmuch as various notices had not been served, but against that decision there appears to have been no appeal by the decree-holder. I mention that fact for the purpose of a matter which we shall have in a moment to consider.

Now, in Bhagwat Sahay v. Ram Sukrit Ram AIR 1937 Pat 351 a decision of the Letters Patent Court from a judgment of mine, it was held that an application for transfer was a step-in-aid of execution within the meaning of Article 182, Col. 3, Limitation Act.

In Ram Bilas Mal v. Raghunath Sahy (1937) 172 I C 30 the Chief Justice and James, J. decided that a Munsif had jurisdiction to sell in execution a property beyond his own immediate jurisdiction but within the same division. There is no dispute in this case that the Sitamarhi properties are within the division in which the Second and the First Munsif preside. Now, the questions which were discussed in the Court below and argued in this Court having regard to the decision to which I have just referred become irrelevant and for this simple reason.

The application to the First Munsif for execution based as it was upon the transfer certificate which was filed on 29th August 1935, gave to the First Munsif jurisdiction over the Sitamarhi properties; and had that execution case proceeded and the Sitamarhi properties had been sold, on the authority of Ram Bilas Mal v. Raghunath Sahy (1937) 172 I C 30 it would have to be held that it was a good and valid execution and sale.

For those reasons the question of whether the application for the last certificate of transfer was an application to the proper Court quite clearly does not arise. As there was no appeal with regard to the decision of the trial Court on the service of notices, the result would be that the sale held in execution will stand as set aside but the decree-holder will now be at liberty to proceed to sell the properties again.

The appeal is allowed and the order of the District Judge is set aside. The appellant is entitled to his costs.

Varma, J.

I agree.