Kameshwar Prosad Singh and Others vs Lalu Mal

Fazl Ali, J.—The only question which arises in this appeal is one of limitation.

It appears that the decree under execution was passed by the Subordinate Judge of Gaya on 29th September 1931. On 21st December 1931 the decree-holder asked the Subordinate Judge to transfer the decree for execution to the Court of the District Judge at Patna and the Subordinate Judge passed an order to that effect. On 28th July 1932 the decree was transferred by the District Judge to the Subordinate Judge, Third Court at Patna, and on the same day, the decree-holder applied to him for the execution of the decree. The execution case however was struck off on 27th September 1932, as the decree-holder failed to comply with certain orders passed by the executing Court.

The present application for execution was made by the decree-holder on 18th July 1935 and it is now contended on behalf of the judgment-debtors that this application is barred by limitation inasmuch as the application made by the judgment-debtors on 28th July 1932 was not made to the proper Court and was not in accordance with law. The jurisdiction of the Subordinate Judge of Patna to entertain that application is assailed on the sole ground that the number of suit and the names of the judgment-debtors given in the certificate of non satisfaction issued by the learned Sub-ordinate Judge of Gaya on 8th January 1932, were not correct.

It is further contended that inasmuch as the decree-holder did not take any steps to have the necessary corrections made in the certificate, the application which he made for execution in July 1932 was not in accordance with, law. Order 21, Rule 6, provides that the Court when sending a decree for execution shall send

(a) a copy of the decree, (b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied ; and (c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

It is not disputed that the requirements of the Section were fully complied with by the Subordinate Judge of Gaya while transmitting the decree nor is it contended that the copy of the decree which was sent by him did not contain the correct particulars as to the number of the suit and the names of the judgment-debtors. "It is however contended that the Subordinate Judge of Patna had no jurisdiction to entetain the application for execution in consequence of the mistakes, to which I have already referred in the certificate of non-satisfaction granted by the Subordinate Judge of Gaya. This contention is clearly without substance because the decree-holder cannot be in a worse position than he would have been if the Subordinate Judge at Gaya had, while sending the decree for execution, omitted to send a certificate as required under Clause (b), Order 21, Rule 6. But it cannot be seriously contended that in such a case the Court to which the decree is transferred would have had no jurisdiction to entertain the application for execution.

Such a contention was raised in Abbubakar v. Mohidin (1897) 20 Mad. 10 but it was held that the omission to transmit to the Court executing the decree the certificate of non-satisfaction is a mere irregularity and would not affect the jurisdiction of that Court to proceed with the execution.

The second point raised on behalf of the appellant is also without any substance. It is not suggested that the petition for execution filed by the decree-holder on 28th July 1932, was not drawn up in the manner required by Order 21, Rule 11 or was defective in any other respect. It is said to be not according to law merely by reason of the fact that the decree-holder did not proceed to have the mistakes in the certificate of non-satisfaction corrected.

It is clear that any default on the part of the decree-holder in prosecuting his application after it has been filed cannot invalidate an application which is otherwise in accordance with law.

In my opinion the lower appellate Court has rightly held that the execution is not barred and I would therefore dismiss this appeal with costs.

Agarwala, J.

I agree.