Krishna Dutta and Another vs Ganga Prasad and Others

Dalziel, J.—These are two second appeals by a decree holder against a decision of the learned District Judge of Manbhum reversing an order of the Subordinate Judge of Dhanbad and holding that his application for execution was time-barred. The decree had been obtained in the Court of the Munsif of Mirzapur in the United Provinces on 4th June 1931, and the petition for execution which has been held to be time-barred was filed in the Court of the Subordinate Judge of Dhanbad on 4th June 1943, i.e. the last day of the 12 years period of limitation. The steps that had been taken in the intervening period were as follows:

On 31st July 1931, the appellant filed an application in the Mirzapur Court for transfer of the decree to the Dhanbad Court for execution and on 8th August 1931, it was ordered that a certificate should be prepared and handed over to the decree-holder''s counsel, which appears to have been done. But evidently thereafter the decree-holder took no'' action. Then on 3rd August 1934, a second application for transfer to the Dhanbad Court was made in the Mirzapur Court on which ultimately an order was passed on 28th February 1936, by the Mirzapur Court that a certificate of the decree be prepared, and on 25th March 1936, the order forwarding the certificate of non-satisfaction of the decree to the District Judge of Manbhum was actually passed by the Munsif of Mirzapur and on the next day the case was accordingly dismissed.

On 28rd March 1939, the appellant filed an application in the Court of the Munsif of Mirzapur for execution by arrest of the judgment-debtors. At this date, no intimation of non-satisfaction had yet been sent by the Subordinate Judge, of Dhanbad, but this was done on 29th May 1939, when the certificate of non-satisfaction dated 25-3-1936, given by the Munsif of Mirzapur was sent back with the remark that it is "returned with the intimation that no execution has been taken." The appellant apparently took no steps to pursue his application for execution by arrest of the judgment, debtors and it was accordingly, on 14-8-1939; ordered to be struck off for default of prosecution.

On 30-5-1941, the appellant again applied to the Mirzapur Court for transfer of the decree to the Dhanbad Court and an order of transfer was passed on the next day. Finally, as has already been said, the appellant filed his last execution case on 4-6-1943.

The main ground on which the petition has been held to be time-barred by the lower appellate Court is that the application in the Mirzapur Court dated 23-3-1939, was not made in the proper Court within the meaning of Article 182(5), Limitation Act, and, therefore, does not save limitation. As against this it is urged, in the first place, that the correct view of the law, although this Court has consistently held differently, is that even after transfer of the decree from the Mirzapur Court that Court is still a proper Court to which the decree-holder can apply for execution, and that, even if the other view prevails, when the certificate of non-satisfaction was sent on 29-5-1939, to the Mirzapur Court, thereupon by applying the doctrine of "relating back" the Mirzapur Court can be deemed to be the proper Court. Alternatively, it is urged that the Allahabad view on this point of law, which is contrary to the Patna view, should be applied in respect of the application to the Mirzapur Court. A further contention for the appellant is that even if the proceedings in the Mirzapur Court, which were started by the application of 23-3-1939, are ignored, limitation is saved by the fact of the Dhanbad Court sending certificate of non-satisfaction, which should be considered to be a "final order" of the proceedings which started with the application of 3-8-1934, in the Mirzapur Court for transfer of the decree to the Dhanbad Court for execution.

The first argument advanced on behalf of the appellant involves the reversal of the view so far taken in this Court that where a decree is transferred for execution to another Court, an application for its execution made, after the transfer and before the receipt of a certificate of non-satisfaction from the transferee Court, to the Court which transferred the decree is not an application to the proper Court within the meaning of Article 182(5), Limitation Act, and is not, therefore, a step in-aid of execution; Rameshwarlal v. Tilokechand AIR 1945 Pat. 129 which follows a number of previous rulings to the same effect. This would, of course, necessitate a reference of this case to a Full Bench, The grounds on which this is urged are that the Patna view is based on a misapprehension of the Privy Council ruling in Maharaja of Bobbili v. Narasaraju AIR 1916 P.C. 16 and that the contrary view has keen taken by "all the other High Courts in India."

It does not appear to me to be necessary to enter into the longstanding controversy as to what is the effect of the ruling of the Privy Council which has just been mentioned. The Patna view in this matter is based not only on that ruling but on the plain wording of Order 21, Rule 10, Civil P.C. and in this connection I very respectfully agree with the view of Wort A.C.J. in Kamakhya Narain Singh v. Kalipada Dutt AIR 1939 Pat. 289 that "the matter is clear from the provisions of Order 21, Rule 10", which the judgment cites and then goes on--"In my judgment, as I have already stated, that puts the matter beyond any doubt." In the 1944 ruling already referred to Rameshwarlal v. Tilokechand AIR 1945 Pat. 129 the decision is based on the provisions of Order 21, Rule 10, as well as on the observations of their Lordships of the Judicial Committee in the case in Maharaja of Bobbili v. Narasaraju AIR 1916 P.C. 16.-

The contention that all the other High Courts take the opposite view in this matter is not borne out by a study of the rulings. Mr. P.R. Das for the appellant referred to the rulings of five High Courts, namely, Calcutta, Bombay, Lahore, Allahabad and Rangoon, which are mentioned in the judgment of Chatterji J. in Rameshwarlal v. Tilokechand AIR 1945 Pat. 129, as taking a contrary view, but apart from the fact that those are only five High Courts, it will be seen from the succeeding paragraphs of the same judgment, in which the rulings are discussed and analysed, that most of them are on different points and do not directly touch the question with which we are concerned here.

Dealing with the Calcutta case Rajani Kanta Pattadar Vs. Kazi Saiyed Golam Mahiuddin and Others, , the learned Judge pointed out that the actual point for decision was whether the Court which passed the decree, after it has transferred the decree for execution to another Court, is competent to transfer it again. It may also be added that that case was decided on the basis that there had been a certificate of non-satisfaction by the transferee Court dated 30-4-1930, i.e. earlier than the application by the decree-holders to the Court which had passed the decree.

Dealing with the Bombay case, Fatechand Rampratap v. Jitmal Rupchand AIR 1929 Bom 418, Chatterji J. referred with approval to an observation of Madgavker J. drawing a distinction between the question whether the decreeing Court is a proper Court for a certain step-in-aid of execution and the question whether the Court is entirely without jurisdiction in respect of the decree which it has itself made, and, I may remark that similar agreement with this observation has been expressed by Meredith J. in Darshansingh v. Baldeo Das AIR 1946 Pat. 365. In the Bombay case the only question considered was whether the decreeing Court is deprived of all jurisdiction until the Court to which it has transferred the decree has certified the result of execution.

The Lahore case, Kanti Narain v. Madan Gopal. AIR 1935 Lah 465 is certainty a decision by a Pull Bench which is directly against the Patna view on this point, but as remarked by Chatterji J. one of the learned Judges, Skemp J. with reference to Order 21, E. 10, expressed himself as in agreement with the Patna view.

With regard to the Allahabad case, Makkhan Lal Vs. Mt. Bhagwana Kuer, , Chatterji J. remarked that the actual question for decision was one of jurisdiction and not of limitation, and that there was no reference to Order 21, Rule 10, Civil P.C.

As regards the Rangoon case, K.K. Deb v. N.L. Choudhary AIR 1927 Rang. 258, it was pointed out by Chatterji J. that the actual decision was that there is nothing in the present Code which prohibits the sending of a decree for execution to two Courts at the/Same time. Having considered the effect of all these decisions of other Courts, the judgment in Rameshwarlal v. Tilokechand AIR 1945 Pat. 129, goes on to re-affirm the view previously held by the Patna High Court as already stated.

Our attention has been drawn to a later Patna case, Darshansingh v. Baldeo Das AIR 1946 Pat. 365. This ruling held that where a decree was transferred for execution, and the transferee Court sent no certificate u/s 41, Civil C.P., and thereafter certain orders for execution were passed by the transferor Court, the transferor Court had jurisdiction to pass the orders. This ruling cannot be said to overrule or even to dissent from the view expressed in the 1944 Patna case Rameshwarlal v. Tilokechand AIR 1945 Pat. 129 and earlier rulings on the point that is now before us. As I have already remarked, Meredith J. in this ruling has agreed with the observation of Madgavkar J. in the Bombay case, Fatechand Rampratap v. Jitmal Rupchand AIR 1929 Bom 418, emphasising the distinction between the question of a decreeing Court being a proper Court for a certain step-in-aid of execution and the question whether a Court is entirely without jurisdiction in respect of the decree which it has itself made. In an exhaustive discussion of the previous rulings on the question that was at issue in that case the previous rulings on the particular point that is in issue in the present case were not mentioned. These rulings could not, of course, have been overruled except by referring the matter, to a Full Bench.

No authority was cited before us for the contention that the Allahabad view and not the Patna view should be held to be applicable so as to treat the Mirzapur Court as a proper Court even in spite of the non-receipt of the certificate of non-satisfaction. This view appears to me to be untenable. The statute law on this point is the same throughout India, and the Courts have to interpret this law and not to legislate themselves. In deciding the point whether a Court is a proper Court within the meaning of Section 182(5), Limitation Act, this Court has before it a question of objective law in force throughout India and cannot hold that in exactly the same circumstances a Court is a proper Court in one Province and not in another. To do so would have the inequitable result that a decree-holder executing his decree in this province would be in a better position to keep his decree alive if he happens to have obtained it in the Court of some other Province than if he had obtained it in a Court of this Province.

The next contention for consideration is that by the doctrine of "relating back" the Mirzapur Court should be deemed to be the proper Court when the certificate of non-satisfaction was returned on 29th May 1939. (As I have already remarked, what actually happened on that date was that the previous certificate of non-satisfaction given by the Mirzapur Court on 25th March 1936, was returned with the intimation that no execution had been taken at Dhanbad.) In support of this contention Mr. P.R. Das relied on Hiralal Anant Ram v. Sherumal Chainamal AIR 1926 Lah 113. In that case, however, the application which was in question was one for a fresh certificate of non-satisfaction and not an application for execution of the decree, and, moreover, it was found as a fact that previous to the date of this application the transferee Court had already ordered that a certificate of part satisfaction should be issued to the transferor Court. A decision on these facts is irrelevant to the present case, and I can see no reason for applying the doctrine of "relating back" in the present case, where the only facts apparent on the record are that an application for execution was filed in the transferor Court on 23rd March and an intimation of no execution having been taken out in the transferee Court was sent on 29th May following.

The second string to the appellant''s bow is the contention that the intimation of non-execution sent by the Dhanbad Court to the Mirzapur Court on 29-5-1939, was a final order which saves limitation within the meaning of Article 182(5). This point appears to me to have been correctly dealt with by the lower appellate Court. A ruling of the Oudh Chief Court, AIR 1945 Oudh 298 Deputy Commr., Rai Bareli v. Newazish Ali Khan was cited. But as the learned District Judge rightly remarks, this was a case in which an application for execution had been made and on that basis it was held that the execution did not terminate till the return of the certificate to the decreeing Court. There is no proceeding in the present case on which the action;|of the Dhanbad Court taken on 29.5-1939, can be said to be the "final order". The appellant has simply had the decree transferred to Dhanbad, which was done on 25-3-1936, and taken no further steps. It would be absurd to hold that after the decree had been transferred to the Dhanbad Court and, while the decree-holder remained idle for all these years, his decree was being kept alive indefinitely. It was urged before us that in actual fact the application of 3-8 1934, was not merely an application for transfer of the decree but for execution, and in support of this it is pointed out that it was in the form laid down in Sub-rule (2) of Order 21, Rule 11, for applications for execution of decrees. It is true that was presented in this form with the columns duly filled up, but in the tenth column, which is intended for the entry of the mode in which the [assistance of the Court is required, the entry consists merely of a prayer that certificate of nonsatisfaction of decree should be sent to the Munsif''s Court, Dhanbad. It was stated that the previous certificate which was taken could not be executed due to illness and it was attached to the application with the request that a fresh certificate should be issued, adding interest thereon. This cannot, in any sense, be held to be an application for execution. If it had been such an application, this column would have contained a specification of the manner in which the decree was to be executed, i.e. one of those modes enumerated in Sub-clauses (i) to (v) of Clause (j) of the said Sub-rule (2) of Rule 11.

In both the lower Courts, the plea was put forward that the decree-holder was entitled u/s 14, Limitation Act, to deduct the period which he spent in pursuing his remedy in the Mirzapur Court for the period of limitation. This has not been pressed before us, presumably because, in any case, even if it succeeded it would not help the appellants as it would only enable them to deduct about 4� months out of a total period of over 5 years intervening between the 1934-36 proceedings and the application of 30-5-1941.

I should hold accordingly that the decision of the learned lower appellate Court that the application dated 4-6-1943, for execution was barred by limitation is correct and would dismiss the appeals but without costs.

Sinha, J.

I agree to the order proposed.