M. Krishna Pattar vs K. Seetharama Pattar

This is an appeal against an order of the Subordinate Judge of South Malabar at Calicut who, reversing the order of the District Munsif, held

that the decree-holder appellant''s application to transfer the decree in O.S. No. 226 of 1916 from the Alatur District Munsif''s Court to the

District Munsif''s Court of Vaiyitri for execution was barred by limitation. A prior petition for execution, E.P. No. 458 of 1919, had been

presented on the 4th of July, 1918. In the course of that petition an application was put in by the judgment-debtor to record satisfaction of the

decree on the 1st of August, 1919. A statement was then filed by the appellant on the 18th of August, 1919 praying that the judgment-debtor''s

petition to record satisfaction of the decree should be dismissed. The present application for transfer was made on the 26th of August, 1922. If

time is calculated from the date of E.P. No. 458 of 1919, it is admitted that the present application is barred by time; but it was contended before

the Subordinate Judge that the written statement of objections filed on the 18th of August, 1919 should be taken as ""a step-in-aid of execution

under Article 182(5) of the Limitation Act and that if time is calculated from the date the present application is not barred. In Kuppuswami Chettiar

v. Rajagopala Aiyar 43 M L J 303 it was held that a statement filed by a decree-holder objecting to the judgment-debtor''s application to enter up

satisfaction of. the decree is not a step-in-aid of execution. Relying on that decision the learned Subordinate judge overruled the appellant''s

contention and dismissed his petition.

The same contention has again been pressed before us; and the learned Vakil for the appellant has tried to distinguish the case in Kuppuswami

Chettiar v. Rajagopala Aiyar 43 M L J 303 on the ground that there was no pending execution application in that case, arguing from this fact that if

there was a pending application in that case the learned Judges would have arrived at a different conclusion. He has also argued on the authority of

various decisions that a statement of objections filed by the decree-holder in circumstances like the present should be held to be a step-in-aid of

execution under Article 182(5) of the Limitation Act.

The facts of the case in Kuppuswami Chettiar v. Rajagopala Aiyar ILR (1921) M 466 were as follows:

The decree was dated the and May, 1916 and the only prior execution petition presented by the appellant-decree-holder was dismissed on the 7th

of September, 1916. Admittedly the execution petition out of which the appeal arose was presented out of time but it was said as in the present

case that prior to the application for execution the judgment-debtor had put in a petition for entering up satisfaction of the decree and that in

connection therewith the decree-holder had filed a counter-statement denying the receipt of money;and praying that the petition should be

dismissed. It was contended that the application to reject the petition to record satisfaction of the decree was a step-in-aid of execution, but this

contention was overruled. In the course of his judgment, Ayling, J. (who delivered the leading judgment) stated thus:

The Article 182(5) classes together an application for execution and an application to take some step-in-aid of execution and the latter words

appear to be intended to cover an application, which is not an initial application for execution, but is an application to take some step to advance

an execution proceeding, which is already pending, e.g., application to bring to sale properties already under attachment (p. 469).... But (whatever

case may be made out for an application made in connection with a pending execution petition is one for taking a step-in-aid as furtherance of it, an

application made at a time when no execution petition is pending stands on an obviously different footing.

It is argued that two conclusions follow from these extracts: (1) that an application to be a step-in-aid of execution should be one made in

pending execution application, and (2) that if there was a pending execution application in that case as in the one before us, then the learned Judges

would have certainly held that the statement of objections filed by the decree-holder to the recording of satisfaction would be a step-in-aid of

execution. As regards the first conclusion sought to be deduced from the judgment, no doubt the decision in Balaguruswami Naicken v.

Guruswami Naicken (1924) 48 M L J 506 supports the appellant''s contention; but it is not necessary to discuss the correctness of that conclusion

in this case as admittedly here there is a pending execution application. If we really had to decide the question we should hesitate to accept this

decision without further consideration of the matter in the light of all the decided cases of our Court which have not been referred to in

Kuppuswami Chettiar v. Rajagopala Aiyar 43 M L J 303. It seems to us that the remarks referred to were made by the learned Judge only to

distinguish those cases, wherein questions of a similar nature arose in connection with pending execution applications. As regards the second

conclusion sought to be deduced from that judgment, we have no doubt that the appellant''s contention cannot be accepted because the learned

judge''s decision is based upon an interpretation of the decree-holder''s objection petition in view of what he considers should be the meaning of

the expression ""applying to take some step-in-aid of execution,"" for, the learned Judges state at p. 470:

The petition, Ex. E, may tend to prevent the Court placing an obstacle in the way of future execution of the decree, but it does not ask the Court to

take any step-in-aid of execution. Supposing it. to be successful; execution of the decree is no further advanced than it was before the petition was

presented.

This shows that even if there was a pending execution application, the learned Judge would have come precisely to the same conclusion because

in his view the decree-holder did not by filing his objection statement ask the Court to take any step-in-aid of execution. We respectfully accept

this view.

According to the third column of Article 182(5) of the Limitation Act, time for execution is to be calculated from "" the date of applying in

accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order

The latter part of this clause specifies the date of applying to the Court asking it to take some step-in-aid of execution of the decree or order as

the date from which the period of limitation should be computed and not the date of the petitioner''s taking some step-in-aid of execution. If this

distinction is well kept in mind, much of the diversity of the views among the various High Courts as regards the meaning of the expression

applying to take some step-in-aid of execution"" can easily be explained. As pointed out by Oldfield, J., In Rangachariar v. Subramania Chetti

(1920) 12 L W 9

It is material that the starting point under Article 182, Scheduel I of the Limitation Act is not the taking of a step-in-aid of execution, but the

application to take such a step.

In the same judgment Seshagiri Aiyar, J. refers to the same matter thus:

Two things are essential. There must be an application and that application must ask the Court to take a step-in-aid of execution.... The fact that a

party took some steps would not be enough.

The distinction we are referring to is nowhere better pointed out than in Raghunundun Misser v. Kallydut Misser ILR (1896) C 690 . In that

case the learned Judges were considering whether an application by a decree-holder for leave to bid at a sale in execution of the decree is a step-

in-aid of execution within the meaning of the Limitation Act (XV of 1877), Scheduel II, Article 179 (corresponding to Article 182 of the present

Limitation Act). In coming to the conclusion that it is not such a step the learned Judges state:

We do not think an application of this kind is an application seeking the action of the Court in execution of a decree. It may be in one sense a step-

in-aid of execution of the decree, but it is not a step by the Court. Before a judgment-debtor can) get any benefit he must show that he asks the

Court to take some step-in-aid of execution. A step taken by the judgment-creditor himself is not sufficient.

This case has been followed in Kuppuswami Chettiar v. Rajagopala Aiyar 43 M L J 303. If this distinction is borne in mind, it is obvious that a

statement of objections filed by the decree-holder objecting to the recording of satisfaction cannot in any way be considered to be a step-in-aid of

execution. By filing the statement the decree-holder does not ask the Court to take any step-in-aid of execution. In the words of Ayling, J. in

Kuppuswami Chettiar v. Rajagopala Aiyar 43 M L J 303 "" supposing it to be successful, execution of the decree is no further advanced than it

was before the petition was presented "". We will now discuss the cases referred to by the learned vakils on both sides.

In Kewal Ram v. Khadim Hussain ILR (1883) A 576 it was held that

An application by a decree-holder praying that the objections taken by the judgment-debtor to the sale of property belonging to him in execution

of the decree should be disallowed and the sale be confirmed is an application from the date of which the period of limitation for a subsequent

application for execution of the decree may be computed.

This judgment simply records this opinion and does not contain any discussion of the question. It is conceded that the decision in Kuppuswami

Chettiar v. Rajagopala Aiyar 43 M L J 303 is opposed to this view. This decision was followed by the Allahabad High Court in Shugan Chand v.

Ramjas (1910) 5 I C 292. In Tamiz-un-nissa Bibi v. Najju Khan ILR (1918) A 668, brought to our notice, it was held that an application to the

Court executing a decree asking that certain objections to the execution of the decree be rejected is a step-in-aid of execution within the meaning

of Article 182(5) of the First Schedule of the Limitation Act. Here also the judgment does not contain any discussion of the question. In Langtu

Pande v. Baijnath Saran Pande I.L.R.(1906) A 387 it was held that the mere filing of an answer by the decree-holder resisting an application of a

declaration of insolvency filed by the judgment-debtor cannot be deemed to be an application to take a step-in-aid of execution within the meaning

of Article 179. This view is opposed to th""t earlier and later decisions of the same Court.

In Umesh Chunder Dutta v. Soonder Narain Deo ILR (1889) C 747 it was held that the appearance of a decree-holder by his pleader to

oppose an application made by the judgment-debtor to set aside a sale in execution of the decree is not an application within the meaning of Article

179 of Scheduel II of the Limitation Act to take a step-in-aid of execution. The learned Judges stated that

The implication contemplated by that article of the Limitation Act is an application to get some order of the Court in furtherance of the execution of

the decree. The appearance of the pleader cannot be regarded as such an application.

The decisions in Raghunandan Pershad v. Bhugoo Lall ILR (1889) C 268 and Raghunudun Misser v. Kallydut Misser ILR (1896) C 690 also

take a similar view of Article 179, Scheduel II of the Limitation Act. These cases have been followed in Kuppuswami Chettiar v. Rajagopala Aiyar

43 M L J 303 as regards the interpretation of the article in question [see also Troylokya Nath Bose v. Jyoti Prakash Nandi ILR (1903) C 761. On

the facts, the decision in Gobind Pershad v. Rung Lal ILR (1893) C 23 can be distinguished. In that case it was held that an application by a

decree-holder, praying that a petition of the judgment-debtor to set aside the sale of property belonging to him should be rejected and the sale be

confirmed is an application falling within the meaning of Article 179(4) of Scheduel II of the Limitation Act of 1877. The facts of the case show that

after the sale was confirmed the judgment-debtor applied for a review of the order confirming the sale and the review was granted in spite of the

objections of the decree-holder who appeared and opposed it. Subsequently the decree-holder put in an application praying that the judgment-

debtor''s application to set aside the sale might be rejected at the same time applying for confirmation of the sale. In view of the ""review order"" that

was passed against the decree-holder, we are inclined to think that the decree-holder''s application was in furtherance of execution proceedings.

The decision in Kedar Nath Dey Roy v. Lakhi Kanta Dey (1917) 40 I C 1005 is also distinguishable. In that case the judgment-debtor raised

objections to the delivery of possession by the Commissioner and the Court found it necessary to determine the standard of measurement and for

that purpose to take evidence in the matter. An application was then made by the decree-holder for summoning witnesses.It was held that this was

a step-in-aid of execution within the meaning of Article 182(5). It is clear from the facts that In the opinion of the Court execution could not

proceed without determining the standard of measurement. In this view the application to file a list of witnesses may be deemed to be a step-in-aid

of execution. The learned Judges in arriving at this conclusion follow the prior decisions of their Court already referred to. In Brojendra Kishore v.

Dil Muhmud Sarkar (1918) 44 I C 604, when the decree-holder applied for execution of his decree the judgment-debtor put in an objection to its

execution. Both the parties having been directed by the Court to adduce evidence in support of their respective cases, the decree-holder filed a list

of witnesses and intimated to the Court that he was ready to proceed with his case. The Court held that the filing of the list of witnesses and

intimating to the Court that he was ready to proceed with the case implied an application on the part of the decree-holder to the Court to take the

evidence which he was prepared to adduce and repel the objection taken by the judgment-debtor and in effect this should be taken to be an

application to the Court, to take some step-in-aid of execution. This decision to some extent supports the appellant. Excepting this decision the

Calcutta High Court has taken a view consistently opposed to the contentions of the appellant.

The Bombay cases relied upon by the appellant need nor. be discussed in detail. The latest decision of that Court is reported in Lakshmiram

Lallubhai v. Balashankar Veniram ILR (1914) B 20 in which it was held that an appeal against an order adjudging the judgment-debtor an

insolvent was a step-in-aid of execution. This has been expressly dissented from in Kuppuswami Chettiar v. Rajagopala Aiyar 43 M L J 303. In

Sesha-dasacharya v. Bhimacharya ILR (1912) B 317 an application filed by the decree-holder for extension of time to produce an extract from

the Collector''s record ordered by the Court to be filed within a particular date but which was not so filed was held to be a step-in-aid of

execution. With all deference to the learned Judges, we cannot accept this conclusion or the reasoning on which it is based.

Thus far, we have discussed the decisions of the other Courts brought to our notice. Our own High Court has always held the position that an

application to be a step-in-aid of execution must be one in furtherance of execution proceedings. We have already indicated the interpretation put

upon the article by the learned Judges in Rangachariar v. Subramania Chetti (1920) 12 L W 9 at 10. Having reference to the facts of the case, the

decision in Kunhi v. Seshagiri I.L.R.(1882) M 141 does not really help the appellant. In that case it was held that an application by a judgments-

debtor to the Court which passed a decree Tor a certificate that a copy of the Revenue register of the land is necessary to enable him to obtain

such a copy from the Collector''s Office and thereupon to execute the decree by attaching the land, is a step-in-aid of execution within the meaning

of Article 179(4). Innes, j, pointed out that ""the production of the copy of the register was a necessary preliminary to execution and the application

made by the decree-holder to the Subordinate Judge''s Court would enable him to obtain it."" In this view the application was one in furtherance of

execution proceedings and was a step-in-aid of execution. The decision in Abdul Kader Rowther v. Krisknan Malaval Nair 26 M L J 433 no

doubt supports the appellant. There it was held that an application by a decree-holder for an adjournment to enable him to adduce further evidence

was a step-in-aid of execution. We may point out that Ayling, J, in Masilamani Mudaliar v. Sethusami Aiyar ILR (1917) M 251 found it impossible

to concur with this view. The latest decision of our own Court is the one in Balaguruswami Naicken v. Guruswami Naicken (1924) 48 M L J 506

already referred to in another connection. The facts of the case are as follows:A mortgage decree in favour of the plaintiffs was passed on the 14th

of September, 1916, and an execution application was filed on the 25th of September, 1917. It was dismissed on the 17th of October, 1918. The

application that gave rise to the appeal was dated the 9th of March, 1923. A certain sum of money in Court was paid to the decree-holder by

order, dated the 31st of March, 1920, and a cheque was actually issued on the 1st of April, 1920. The money in Court had been paid by a

mortgagee of the joint-debtor who had been directed to pay off the decree amount The decree-holder relied to save his application from the bar of

limitation on the date of the order for payment to him of the money in Court. "" The learned Judges held that the application of the decree-holder is

not a step-in-aid '' of execution. They base their decision on two grounds, (I) that in the circumstances of the case an application for an order for

payment out by the Court is not a step-in-aid of execution, and (2) that as there was no pending execution application the order relied upon could

not be considered to be a step-in-aid of execution. As regards the latter ground, we have already expressed our opinion. It is not necessary to

discuss the first ground either as the decision, if correct, certainly supports the view that the application we have got to deal with in the present case

is not a step-in-aid of the execution. If we hold that the application in that case amounts to a step-in-aid of execution our opinion cannot help the

appellant because as we have already pointed out Mis objection application cannot in any sense be deemed to be one in furtherance of execution

proceedings.

The cases examined above show that there has been much diversity of opinion as regards the interpretation of the expression ""applying to take

some step-in-aid of execution."" In our opinion, the decision in Kuppuswami Chettiar v. Rajagopala Aiyar 43 M L J 303 interprets that expression

correctly, and the weight of authority is in support of that interpretation. That decision must govern the present case. In this view the filing of

statement by the decree-holder in this case objecting to the judgment-debtor''s application to record satisfaction of the decree is not a step-in-aid

of execution and cannot therefore save his last application from being barred by limitation. We therefore dismiss this appeal with costs.