Modali Ademma vs Lanka Venkatasubbayya and Another

Horace Owen Compton Beasley, Kt., C.J.—The Civil Revision Petition raises an interesting question of practice. It has been put before us

by our learned brother Krishnan Pandalai, J., on account of a conflict of opinion of two single Judges, one of Krishnaswami Aiyar, J., in Arimuthu

Chetty Vs. Vayapuri Pandaram, and the other of Jackson, J., in S.R. Nanjunda Chettiar Vs. Nallakaruppan Chettiar, . Our learned brother

Krishnan Pandalai, J., was inclined to agree with the earlier decision.

The question is, when does an order of transfer of a decree take effect so as to enable the Court to which the decree is transferred to entertain

applications for execution? This is a matter of some importance in some cases, and it is so in this case because, if the view in Arimuthu Chetty Vs.

Vayapuri Pandaram, is to prevail, then the petitioner''s application for execution was not barred by limitation; and, in my view, the question of

limitation has an important bearing in coming to a decision upon this point. In Arimuthu Chetty Vs. Vayapuri Pandaram, the view expressed is that

even though a copy of the decree has not been received by the executing Court, the decree-holder is entitled to apply to that Court for execution.

Jackson, J., in S.R. Nanjunda Chettiar Vs. Nallakaruppan Chettiar, takes the contrary view. In the former case Krishnaswami Aiyar, J. says:

I am not at all sure, having regard to the provisions of Rules 6, 7 and 8 of Order 21, that the Court to which a decree is sent for execution is

authorised to execute it before a copy of the decree is received; but I think there is force in the contention that, when once an order is made

sending a decree to another Court for execution, that by itself is sufficient to entitle the decree-holder to apply to the Court to which the decree is

sent for execution.

Jackson, J.

Considers that, as the Court to which the decree is sent for execution has no authority to execute it until it is received, it has no authority to

entertain the application for execution. In my opinion, the two things do not necessarily go together. For one thing, a judicial order dates from the

time when the order is made and therefore the transfer of a decree to another Court for execution dates from the date when the order of transfer is

made. There is another matter to be considered in this connection and it is this that, if the view taken in S.R. Nanjunda Chettiar Vs. Nallakaruppan

Chettiar, is the correct one, then the following position will arise: The decree-holder after the order of transfer is once made by the Court passing

the decree cannot thereafter apply to that Court for execution. That Court has finished with the matter and by its order of transfer has transferred

the decree to another Court. In the meanwhile what is the decree-holder to do? It may take some days to transmit the decree and the record and

during that time what is to become of the rights of the decree-holder? He has no rights at all which he can avail himself of if the correct view is that

taken by Jackson, J. in S.R. Nanjunda Chettiar Vs. Nallakaruppan Chettiar, . They are in a state of suspense and during the interval between the

despatching of the decree by the transferring Court and the receipt of it by the executing Court, the decree-holder is powerless to do anything.

That may bring with it the following unfortunate result. The decree-holder has a period of time given to him during which to execute his decree and

after that time has expired he is barred by limitation. It seems to me that, if the executing Court cannot entertain an application by a decree-holder

for execution until the receipt of the decree and the order for transfer has been passed two or three days previously, the period of limitation given

to a decree-holder is thereby reduced; because although within time at the date of the order of transfer he may be out of time at the date of the

receipt of the decree by the executing Court and I know of no case where a period of limitation once given to a person can be abridged, though

there are numerous cases where the period is extended. This seems to me to answer this question. In my opinion, the view taken in Arimuthu

Chetty Vs. Vayapuri Pandaram, is the correct one. That being so, this Civil Revision Petition must be allowed with costs.

Bardswell, J.

I agree.