M.A.C. Arunachala Mudali and Another vs Rajagopala Chetty and Another

Satyanarayana Rao, J.—The plaintiffs-decree-holders have preferred this appeal against the order of the District Judge of North Arcot at

Vellore dismissing the execution petition filed by them on the ground that it was barred by limitation after setting aside the order of the learned

District Munsiff of Tiruppattur allowing execution to proceed. The plaintiffs obtained a final decree in O.S. No. 337 of 1934 on the file of the

Court of the District Munsiff of Tiruppattur on foot of a mortgage. The final decree is dated 30th November, 1937. ""The property comprised in the

mortgage is situate in Kalliyur village in Gudiyattam Taluk. By reason of the reshuffling of the territorial jurisdiction of the Courts the plaintiffs

thought that the property was within the jurisdiction of the District Munsiff''s Court of Vellore, and filed on 4th January, 1938, the first execution

application, No. 15 of 1938 which was ordered on 7th January, 1938, but nothing further was done in pursuance of the order. On 3rd January,

1941, the second execution application, E.A. No. 6 of 1941 was filed in the Tiruppattur Court and again an order for transmission was made on

nth January, 1941. As no further steps were taken in that Court the decree was presumably returned to the Court which passed the decree which

necessitated a third application, E.A. No. 461 of 1942 filed on 21st March, 1942, for transmission of the decree to the Vellore Court. This was

again ordered on 24th March, 1942, and this time after the order of transmission on 14th September, 1942, the decree-holders filed Execution

Petition, No. 107 of 1942 for sale of the properties. The application was not pressed by the decree-holders as the judgment-debtors raised the

contention that it was barred by limitation as the prior execution applications were not applications in accordance with law to take a step in aid of

execution. On 9th November, 1944, the decree-holders filed a fresh execution petition, E.P. No. 940 of 1944 in the Tiruppattur Court for sale of

the properties. The judgment-debtors repeated their objection that the execution was barred by limitation. This contention was ovreruled by the

learned District Munsiff and he directed execution to proceed but on appeal however the learned District Judge set aside the order of the learned

District Munsiff and dismissed the application as having been barred by limitation. The appellants complain against this order.

The question in this appeal therefore is whether the prior execution applications were applications in accordance with law to take a step-in-aid

of execution of the decree within the meaning of Article 182, Clause (5) of the Limitation Act. It is urged on behalf of the appellants that as in the

execution applications a relief which the Tiruppattur Court could not have granted was claimed they were not applications in accordance with law

and were not steps-in-aid of execution of the decree. It now turns out that the decree-holders-appellants were under a mistake in thinking that the

property was situate within the jurisdiction of the Vellore Court while in fact the properties all along were within the territorial jurisdiction of the

Tiruppattur Court. The Court also, in granting the applications, was under the mistaken impression that it had no jurisdiction to sell the properties

and that the decree should be sent for execution to the Vellore Court. No doubt the order of transmission made by the Tiruppattur Court as it now

turns out was a wrong order but the error arose by reason of the fact that it was mistakenly assumed that the properties did not exist within the

jurisdiction of the Tiruppattur Court. The applications were made to a proper Court in which the decree-holders asked for a relief on facts which if

true could have enabled them to execute the decree in the Vellore Court. As the basis of the orders of transmission was a mistake of fact and not a

mistake of law I think this case falls within the principle of the decision of a Bench of this Court in Santhappa and Others Vs. Siddalingayya

Eswarappa Bulla, minor by next friend and mother Sangavva and Others, . In that case a decree-holder filed an execution petition before the Court

which passed the decree asking it to transmit the decree for execution to the First Class Subordinate Judge''s Court at Bellary. In fact no such

Court was in existence at the time and the Court which passed the decree could not have made an order of transmission to that effect. Still the

learned Judges-held that the application was one in accordance with law and amounted to a step-in-aid of execution. The very decisions relied on

for the respondents in Sital Prasad Shukul v. Babu Lal Shukul ILR (1932) Pat. 785, and Amrit Lal v. Muralidhar ILR (1922) Pat. 651, were

considered by. the Bench. It is stated in that judgment after referring to these decisions:

We do not think that any of these decisions has any bearing upon this ease because in all of them the application was made for transfer to a Court

actually in existence but without pecuniary-jurisdiction to execute the decrees, a mistake of law which the petitioner could have avoided. This is

not, we think, the same as applying for transmission to a Court which does not exist but which the petitioner wrongly believes to exist. This is a

mistake of fact in our opinion.

To the same effect is the decision of a single judge of this Court in Ayyanna Goundan Vs. T.P. Thandavan Chettiar and Another, . In that case,

Somayya, J., has to consider a case in which the application was one to arrest the judgment-debtor who was adjudicated an. insolvent and

obtained an order of discharge and could not be arrested. Following the decision in Ramachandra Naidu v. Tirupathi Naidu (1916) 36 I.C. 614 of

Spencer and Krishnan, JJ., the learned Judges held that notwithstanding that the application asked for a relief which was no longer available against

the defendant it was still an application in accordance with law. The Patna High Court has also taken a similar view in Bhishundeo Narain Missir

and Others Vs. Raghunath Prasad Missir, .

In view of these decisions, I think that where a decree-holder comes to Court with an application bona fide asking for a relief on facts alleged in

the petition, which if the facts are proved he would be entitled to obtain, and the application is made to the proper Court having jurisdiction to grant

the relief asked for, the fact that that Court came to a wrong decision on the facts would not make the application any the less an application not in

accordance with law. It may be that the order of the Court is wrong as it ultimately turns out but that does not mean that the step he has pursued is

not a step-in-aid of execution though unfortunately it turns out to be a wrong step in the end. All that the law requires is that there should be a step-

in-aid of execution and is not concerned with the question whether that step ultimately turns out to be an infructuous or a wrong step. The

appellants in the present case have throughout acted bona fide in thinking that the property in fact existed within the territorial jurisdiction of the

Vellore Court. Not only they but also the Court at Tiruppattur which passed the various transmission orders was also under the same belief. In

these circumstances it is difficult to see why the applications made by the. decree-holders are not applications in accordance with law and the steps

they took are not steps-in-aid of execution. The only ground on which the learned District Judge differed from the learned District Munsiff was

that, according to him, though the principle in Santhappa and Others Vs. Siddalingayya Eswarappa Bulla, minor by next friend and mother

Sangavva and Others, would have applied to the facts of the case if the mistake is one of fact and not of law it would not apply to the present case

as the mistake was one of law and not of fact. In this, in my opinion he is clearly wrong.

The result is this appeal is allowed; the order of the learned District Judge is set aside and that of the District Munsiff is restored with costs here

and in the Courts below. The learned District Munsiff will take the execution petition into consideration and dispose of the other questions, if any,

raised by the judgment-debtors.