Kothandarama Ayyar and Another vs Swaminatha Sastrial

Byers, J.—The short point which arises for decision in this revision petition is whether an application under Order 21, Rule 16, Civil P. C,

by the son of a deceased decree-holder to be brought on record and for permission to execute the decree was an application ""in accordance with

law to a proper Court for execution"" within the meaning of Clause (5) of Article 182, Limitation Act.

The facts of the case, in so far as they are necessary, are that a decree had been transferred by the Subordinate Judge of Kumbakonam to the

District Munsif''s Court of Kumbakonam for execution, and the application by the deceased decree-holder''s son to be brought on record was

filed on the last day of limitation calculated from the date of the final order on the previous execution application. The application under Order 21,

Rule 16 of the Code was dismissed on the ground that it was not presented to the proper Court, and it was eventually ordered by the Subordinate

Judge who had passed the decree in the first instance. The son having been brought on record, he claimed to continue the execution proceedings

and he relied on the presentation of the execution petition in the Munsif''s Court as a step-in-aid on which a final order of dismissal was passed.

The short point taken by the judgment-debtors'' learned advocate is that under Order 21, Rule 16 of the Code the son could apply only to the

Court which passed the decree. The wording of the rule is clear and devoid of any ambiguity and the rule has been clearly recognized in the

decision reported in Narayanan Chetti and Others Vs. Panchanathan Chettiar and Others, and other decisions which have been cited. The learned

advocate for the respondent relies on the decision of the Privy Council in Jang Bahadur v. Bank of Upper India, Ltd. AIR (1928) 1928. That case

arose out of proceedings u/s 50 of the Code. The facts were that an application for execution against the legal representatives of a deceased

judgment-debtor had been made to the Court, to which the decree had been transferred for execution, instead of to the Court which passed the

decree as laid down by Section 50. Execution had gone on for a considerable time before the legal representative pleaded want of jurisdiction and

their Lordships eventually held that although the exercise of this jurisdiction by the transferee Court was irregular in the first instance, the legal

representative had submitted to it for a considerable time and could not later be heard to object. It is clear, therefore, that this case does not

support the respondent''s contention that an application under O.21, Rule 16 of the Code can be made to either Court at the option of the

applicant. Reliance is placed on the word ""may"" in the rule but this does not, to my mind, indicate that the Court which passed the decree is merely

one of several Courts to which the legal representative may apply. Execution proceedings by the decree-holder are optional and there is no

compulsion upon him to execute his decree; what the rule means is that if the legal representative wishes to continue the execution proceedings, a

matter which is entirely at his option, he can only do so by getting himself brought on record in the Court which first passed the decree.

Another objection has been taken by the petitioners'' learned advocate that apart from the fact that the application was not being made to the

proper Court, it was not made by the decree-holder within the meaning of Section 2, Clause (3) of the Code, which does not include a transferee

whose rights have not been recognized by the Court. The application for execution to the District Munsif was therefore contrary to law for two

reasons; firstly, because it was not made by a person entitled to present it and secondly, because it was not presented to the proper Court. In the

result the petition is allowed and the execution petition is ordered to be dismissed as barred by time with costs throughout.