Kandula Narasimha Rao vs Veerini Burayya and Others

Satyanarayanaraju, J.—O. M. A. No. 256 of 1951: The decree-holder has preferred this Civil Miscellaneous Appeal against the order of the District Court of East Godavari, at Rajahmundry, rejecting an unregistered execution petition filed by him in that Court.

The facts which have given rise to this appeal may be briefly stated: In S. A. No. 1603 of the file of the High Court of Madras, which arose out of the decree in A. S. No. 104 of 1929 on the file of the District Court of East Godavari, at Rajahmundry, which itself was, filed against the decree of the Subordinate, Judge''s Court, Rajahmundry, in O. S. No. 78 of 1924, the High Court passed a decree in favour of the present Appellant and Ors. on the 13th February, 1038. On the oath of January, 1950, the Appellant applied in K A. No. 81 of 1950 on the file of the Subordinate Judge''s Court, Rajahmundry, for transfer of that decree to the District Court, Kajahmundry, for execution.

While that application for transfer was peony the of tile Subordinate Judge''s Court, undry, the Appellant presented an execution Petitioner on the 20th February, 1950, in the Dis-Court, Rajahmundry, praying inter alia for secuwteft. of the decree. In the note added at he end of the execution petition, the Appellant stated that the decree was. barred by the twelve years'' limitation by the 18th and 19th February, 1950, but as the 18th and 19th were public holidays, the petition was filed on the 20th February, 1950, the next working day, and therefore, it was not barred by limitation. In column 6 of the execution petition the fact that E. A. No. 81 of. 1950 was filed on 9th January, 1950, in the Subordinate Judge''s Court, Rajahmundry, and that the same is pending, was noted.

On the 1st August, 1950, the learned District Judge made an order on the unregistered execution petition rejecting the same. The order mentions that it was stated by the counsel for the decree-holder .that the Court, which passed the decree, had not yet ordered the decree to be transmitted for execution by the District Court and that therefore the District Court had no jurisdiction to entertain the execution petition. This order is the subject-matter of the above appeal.

The Respondents not having been represented, Srimati K. Amareswari appeared as amicus curiae and assisted the Court.

E. A. No. 81 of 1950, which was filed before the Subordinate Judge''s Court for transmission of the decree for execution by the District Court was ordered on the 24th August, 1950. Here, it may be stated that the application filed before the Subordinate Judge''s Court, Rajahmundry, did not contain any prayer for execution of the decree. Counsel for the Appellant admitted before us that it was so and that it only contained a prayer for transmission of the decree to the District Court for execution.

The period of limitation u/s 43 of the CPC within which a decree; may be executed is twelve years from the date of the decree sought to be executed. An application to transfer a decree to Anr. Court for execution is not an application for execution within the meaning of S. 48. Such an application, though made within 12 years from the date of the decree will not entitle the decree-holder to execute the decree if the application for execution to the Court to which the decree is transferred, is made after the expiration of twelve years. In the present case, the Subordinate Judge''s Court, Rajahmundry, made an order transmitting the decree to the District Court, Rajahmundry as prayed for on the 24th August. 1950, which is clearly beyond twelve years from the 18th February,1938 when the High Court of Madras passed the decree.

Mr. Punna Rao, counsel, appearing for the Appellant, contended before us that O. S. No. 78 of 1924 was originally filed in the District Court and it was transferred to the Subordinate Judge''s Court, Rajahmundry, only for purposes of trial and decision, and that being so, the Subordinate Judge''s Court became focus officio after the disposal of the suit, and it was the District Court, Rajahmundry, having territorial jurisdiction over the subject-matter of the suit, r ordinate Judge''s Court, that a decree, and the application for having been filed on the 20th the District Court, the applies have been rejected. In suppuration he relied upon Section 37 (L) Civil Procedure.

Section 37 define.; court which passed a decree'' shirrciuffc -

(a) Where the decree to I)..; executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b) Where, the Court ox first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

The Subordinate Judge''s Court, Rajahmundry, which is the Court of first instance entitled to execute the decree, has ceased, to exist nor can it be said to have jurisdiction to execute it the decree to be executed was I High. Court of Madras in Second A proper Court to execute the deer-Court is the Court of first instance. Court of Rajahmundry is not the Instance entitled to execute the much Is conceded, it follows that Court had no jurisdiction without tile decree being targeted.

In Venkataswami Naik v. Sram Mudall ILR 42 Mad 401 relied on by Srimathi Amareswari the fact A mortgage suit was instituted Munsif''s Court of Sriviliiputtur. ft red for trial to the District Mi finnevolly which had no ten-it in respect of the hypothec, in the decree for sale was passed by the Subsequently a part of the ierritoria of the Court of Srivih puttur incipit respect of the hypothec was trail District Munsif''s Court of Kovilpatti not the Subjected the execution hurray, 1950, in C-Joa should not . of this contents the Code of not it ceased n decree. suffice by the and the or the High strict first .area. If so ha refract ; tile decree and of relied ,he se: Mstrict .insofar Court Of jurisdiction suit, and -a! liter Court. jurisdiction lay that in for red to the decree-holder applied to the Court of Kovilpatti for execution of the decree by sale of toe property. An objection was taken to the jurisdiction of the Court of Kovilpatti to execute the , Division Bench of the Madras High sifting of Alia; and Kriabnau J.J., District Munsiff''s Court of Kovilpatti h to execute the decree un decree decree holder got the decree execution. The first canton Appellant therefore, cannot.

Learned Counsel for contended that the order of the C Judge''s Court, dated 24th Augusta ting the decree for execution to Court relates backs: to 9th January, 10 on which E. A. No. 81 of 1950 the for transmission "of the decree, was hi Court. In support of this contention, iced upon the decision in the South It trials, Ltd. v. Narasimha Rao, ILR 50 Mad 372 :AIR 1927 Mad 438 In that case an. application v. Plaintiff in the original Court to person as a Defendant in a pending suit this application was origins\\ally granted but was subsequently dismissed on review by that Court the Plaintiff filed a revision Petition against the order passed on review and the high court directed that the party be added as a Defendant tot the suit without prejudice to any defence of limitation being raised by him in the trial of the suit Kumaraswami Sastri and Reilly JJ., held that the order of the Court adding the party as a Defendant, should, for purposes of limitation, be deemed to have taken effect, not merely on the date when it should have been made by the lower Court if it had taken a correct view of the position, but on the date when the Plaintiff''s application was presented to the trial Court, and that the suit was not therefore barred. The following passage from that decision has been strongly relied upon by the Appellant''s counsel:

it appears to me to be obviously the right principle to adopt in the matter, as otherwise, though an application might be made in time, as in this case, by the dilatoriness of the Court or by the maneuvers of the opposite party or by a mistaken decision of the Court, which had to be put right on appeal or revision, the order to which the party applying was entitled might not be made until the suit had become time-barred, and it would be unreasonable to leave the party who had applied in good time at the mercy of such chances.

It is -contrary to one of the clear principles of the Law of Limitation that a diligent party who has come to Court with his suit or his application within the period prescribed should be defeated because the Court for some reason cannot does no; give him his relief within that period arbitrary balanced time.

There, the learned Judges had to deal with the effect of substituting or adding a new Plaintiff or Defendant in a pending action, and they held that a. party should not be prejudiced by the delay of the Court and .the date of the application must be regarded as the date of the addition of the party.

This decision does not help the Appellant.

Counsel for .the Appellant then cited the decision, in Modali Ademma Vs. Lanka Venkatasubbayya and Another, (C), whore Beasley C. J. and Bardswell J., held that ''''the transfer of a decree for execution dates from the date when the order of transfer is made, and, when once the order of transfer is made, the Court to which the decree is transferred has jurisdiction to entertain application for execution oven though a copy of the decree .has not been received by it.

this diction docs not really support the contention of the Appellant. The learned Judges clearly pointed out that a judicial order dates from the time the order is made and therefore the transfer of a decree Anr. Court for exeunt it dater in the date when the order of transfer is made. Once the order of the transfer is made, the interval of time between the dispatch in of the decree by the transferring Court and the receipt of it by the executing Court cannot; be computed against the decree-holder.

Counsel then relied upon the decision in Venkataratnam v. Chennayya, AIR 1940 Mad There the learned Judges, Burn and Sandarac J followed the decision in Modali Ademma Vs. Lanka Venkatasubbayya and Another, and held that the order transferring a decree for execution , takes-effect from the date on which it is passed and the transferee Court has jurisdiction to entertain application for execution from the date of the passing order of transfer.

M. Perumal Chettiar Vs. Avula Kotayya and Others, (E), which is cited by the learned Counsel for the Appellant, follows the decision in Modali Ademma Vs. Lanka Venkatasubbayya and Another, (C) and AIR 1940 Mad 214 (D).

The next decision cited by the counsel for the Appellant is Srireddi Venkatraju and Others Vs. Allam Gangaraju and Others, (F). Cornish, J., held that Section 48 of the Code of CPC does not preclude the Court from making an order for execution after the expiration of twelve years if the application was resented Within that period. This decision does not help us in the determination of the point arising for decision in this case.

Two other decisions of the Calcutta High Court, which are also relied upon by the counsel for the Appellant, remain to be noticed. In Hosainali Raj v. Barisal Rindan Smity, Ltd., AIR 1945 Oal 141 Henderson J., held that the failure of the Court which passes the decree to send it in time to Anr. Court for execution is a mere irregularity and does not affect the jurisdiction of the transferee Court. This decision was followed in Anantha Kumar v. Surendra Kumar, AIR 1947 Oal 424 where Das J., held that it is the presentation of the application within the time limit prescribed which matters and if the presentation is irregular at its inception and the irregularity is subsequently cured, the application so presented relates back to the date of presentation.

It was there held that where a decree-holder applies for transfer of decree to Anr. Court and then applies to the transferee Court for execution within twelve years, the fact that the order for transfer of decree is passed and that the certificate of non-satisfaction is son I, to the'' transferee Court after the expiry of twelve years does not make the application presented the transferee Court barred by to Clumsy appearing for the judgment-debtor in that case cited before the learned Judge the decision of the Madras High Court in Arimuthu Chetty v. Vyapuripandaram, ILR 35 Mad 588 (i) and ILR 66 Mad 692: AIR 1933 Mad (C) and con-''tended that according to the view taken in those cases the application for execution could be liar-red u/s 48, Code of Civil Procedure. The learned Judge stated that there Was DO doubt it was so but that the view taken by tin; Madras High Court did not find favour with that Court.

From the above discussion of the cases cited it is clear that so far as the Madras High Court is concerned, the view taken is that the order of transfer is a judicial order and that it takes effect from the date on which it is passed. The order of transfer in the instant case was passed on the 24th August, 1950, well beyond the period of twelve years provided by Section 48, CPC Code. The execution petition was rejected by the District Judge on the 1st August, 1950 and on that date there was no order of the Subordinate Judge''s Court transmitting the decree for execution to the District Court. The learned Judge was therefore right in holding that the District Court had no jurisdiction to entertain the execution petition.

E. A. No. 81 of 1950 presented in the Subordinate Judge''s Court, Rajahmundry, for transmission of the decree for execution by the District Court did not contain any prayer for execution, and on the 24th August, 1950, when the order for transmission was made by the Subordinate Judge''s Court, there was no execution petition pending on the fill of the District Court. We are therefore unable to accept the contention, of the learned Counsel for the Appellant that the order of transfer can relate back to the date of the presentation of the petition for transmission of the decree.

Counsel for the Appellant then invoked to his aid the maxim act us curiae nominee gravidity, i.e., an act of the Court shall prejudice no man, and submitted that the application for transfer was made by the decree-holder on the 9th January, 1950, and the delay till 24th August, 1950, when the order was passed, is really that of the Court, and that it should not prejudice the decree-holder. The orders made from time to time on the transfer application filed by the decree-holder were placed before us. None off the returns noted on the transfer application is due to any mistake on the part of the Court.

They were made for the purpose of drawing the attention of the decree-holder for making due compliance with the provisions of law. One of the returns directed the filing of an application for the appointment of a guardian, as two of the judgment-debtors were minors. In the circumstances there is no substance in the contention that there was any mistake on the part of the Court which can be said to have caused some prejudice'' to the decree-holder.

Before closing, ''we must express our thanks to Srimathi Amareswari for assisting us as amicus curiae in this case.

In the result, we hold the order of the learned District Judge under appeal is correct and merits no interference in appeal. The appeal is, therefore, dismissed, but as the Respondents is not represented, without costs.

C. M. A. Nos. 257 and 258 of 1951: The contentions In these two appeals being identical with those in C. M. A. No. 256 of 1951, they are governed by the decision in O. M. A. No. 256 at. They are therefore dismissed but without costs.