M. Noorul Hoda vs Rai Nohar Prasad Verma

Harries, C.J.—This is a second appeal in an execution matter. The decree-holder appellant held a decree against the judgment-debtor-respondent, dated 3rd July 1931. He put the decree into execution, and on 10th February 1936, the decretal amount was realised in part after the sale of certain properties.

On 28th February 1936, the Court approved the schedule of rateable distribution and dismissed the execution case on part satisfaction. On 18th March 1936, the decree-holder applied for the withdrawal of the amount lying in Court.

The present execution petition was filed on 18th March 1939, and it was urged on behalf of the judgment-debtor that the application was barred by limitation. Both the lower Courts have held that the application was barred, hence this second appeal.

There can be no doubt that on 28th February 1936, a Court bad finally determined the matter; it had approved of the schedule of rateable distribution, had approved of the actual sum which the decree-holder was entitled to and had approved that such a sum should be paid to the decree-holder out of the amount in Court. The Court treated the matter as at an end because it dismissed the execution case in part satisfaction.

In my view the moment this order was passed the decree-holder was entitled to the amount rateably awarded to him, and all that was necessary for him to do was to comply with the ministerial rule for allowing him to withdraw the money lying in Court. His application on 18th March 1936, and the order passed thereon was a purely ministerial order and was not a judicial order in any sense of the word. The learned Judge had on 28th February 1986, decided the matter once and for all, and all that was necessary was a ministerial order authorizing the subordinates in the office to pay out the money.

In my judgment this case is clearly covered by authority, the most recent case being Sadananda Sarma v. Kali Sankar Bajpai 10 C.W.N. 28. The facts of that case are very similar to the facts of the present case, and it was held that an order permitting a decree, holder to withdraw moneys awarded to him upon rateable distribution amongst several decree-holders of proceeds realised in execution was in substance as well as in form a ministerial order. The application for withdrawal which the rules of the High Court require to be made to the Chief Ministerial Officer of the Court is not a step taken in aid of execution within the meaning of Article 179 of Schedule II, Limitation Act, although it has finally to be submitted to the Judge in charge of the Account Department.

The application in the present case as in the Calcutta case for the payment of the money was required to be made under the general rules and circular orders, and in the present case the order of the Judge was necessary before the money could be paid over. The only possible distinction that can be drawn between the two cases is suggested by counsel on behalf of the appellant. He has argued that in the Calcutta case there was in the order dismissing the application in part satisfaction a direction that a certain sum should be paid to the decree-holder. The actual words were: "The decree-holder will get Rs. 32-10-3 from the sale proceeds of the execution case No. 103 of 1899.

In the present case the actual order is not before the Court, but the learned District Judge has summarised it by stating that the Court approved the schedule of rateable distribution and dismissed the execution case on part satisfaction.

It appears to me that the order in the present case was an order that the decree-holder was to get a certain amount, and that being so there is no difference whatsoever between the present case and the Calcutta case. The Calcutta decision followed a large number of earlier decisions which are mentioned in the judgment in that case.

It appears to me that this Court is bound to follow this long series of decisions, and that being so, I would hold that this application was barred by limitation in that it was presented over three years from the termination of the earlier execution case.

In the result, there, fore, I would dismiss this appeal with costs.

Shearer J.

I agree.