R. Palaniappa Mudaliar vs M.M. Mariappa Mudaliar

(1) The decree-holder, appellant in the lower court, prefers this appeal from the judgment and decree of the District Judge of Tiruchirapalli dated

2-9-1957 in A. S. 331 of 1956 on his file.

(1a) The appellant obtained a decree for money against the respondent in the court of the District Munsif, Karur, on 9-9-1948. He filed an

application E. A. No. 269 of 1953 on 14-2-1953 in the court of the District Munsif, Karur, for the transfer of the decree to the District Munsif''s

Court, Tiruchirapalli for execution. Notice of that application was sent to the judgment-debtor-respondent. He did not appear. An order was

passed ex parte directing the transfer of the decree to the District Munsif''s Court, Tiruchirapalli. In the District Munsif''s court, Tiruchirapalli the

appellant filed E. P. No. 460 of 1953 for the execution of the decree. That application was dismissed as not pressed.

Then on 3-4-1956 the appellant filed E. P. No. 302 of 1956 in the court of the District Munsif Karur, praying that the decree might be recalled

from the court of the District Munsif, Tiruchirapalli, and that the properties of the respondent might be attached and sold. The judgment debtor

appeared and pleaded that execution was barred by limitation. The ground urged in support of that plea was that the application for the transfer of

the decree viz., E.A. No. 269 of 1953 had been filed more than three years beyond the date of the decree, that that application was barred and

that consequently the subsequent applications were also barred. It was admitted in the lower court and it is admitted at the hearing of this appeal

that, if that application namely E. A. No. 269 of 1953 was in time, the subsequent applications would be in time as well.

(2) On the question whether the application E.A. No. 269 of 1953 was in time, the lower courts have held that it was not. That finding has not

been challenged by the appellant''s learned counsel at the hearing of this appeal. If that question, viz. whether E.A. No. 269 of 1953 was in time,

was open for adjudication in these proceedings, the answer should be that it was not.

(3) The decree-holder contended that the question whether E. A. No. 269 of 1953 was in time was not open for adjudication in these proceedings

because the order directing the transfer of the decree passed in that execution application should be held impliedly to have decided that that

application was in time and the respondent judgment-debtor was thereby barred on principles analogous to res judicata from contending in these

proceedings that that application was not in time. That plea of the decree-holder was overruled by the lower courts, and his petition E. P. No. 302

of 1956 was dismissed. The decree-holder appeals.

(4) In holding that the respondent''s plea, namely, that E. A. No. 269 of 1953 was barred by time, was not barred on grounds analogous to res

judicata, the lower courts relied on the decision of a single Judge of this court reported in Gummadi Appayya and Others Vs. Gavini

Venkataratnam, . That decision has been overruled in Abdul Afeez Sahib v. Official Receiver, 1958 2 Mad LJ 526.

(5) The attention of the lower courts does not appear to have been invited to Kalepalli Rajitagiripathy Vs. Kalepalli Bhavani Sankaran and

Another, . It is a Bench decision and is directly in point. It was held in that case that, in an application for transfer of a time barred decree to

another court for execution, it was open to the judgment-debtor to plead limitation and that in fact he ought to do so. The reason given is that, if the

decree was barred by limitation, the transfer of it to another court was a mere infructuous proceeding which ought not to be taken and, therefore, if

a valid plea of limitation was available, it should be urged in order to prevent multiplicity of proceedings. The District Judge in that case had taken

the view that the judgment debtor, who did not appear in an application for transfer of the decree to another court for execution and against whom

an order ex parte was made in such application directing the transfer of the decree, was not free in any subsequent execution proceeding to plead

that the application for transfer was barred by limitation. That view was upheld by the High Court. That case is directly in point and has to be

followed.

(6) The respondent''s learned counsel argues that considerable doubt is thrown on the authority of that ruling by the decision of the Supreme Court

in Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Others, and requests me to refer the question for the decision of a Full Bench. The facts in

Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Others, were these. In modification of a decree which had been passed by the court of first

instance, the High Court of Calcutta had on appeal, passed a decree directing the defendants to transfer to the plaintiffs certain shares in a private

limited company together with a five anna share in a partnership firm, on payment of a sum of Rs. 2,45,000.

That decree, on further appeal, was affirmed by the Federal Court. Before the appeal to the Federal Court was filed, the partnership firm had

become dissolved by agreement of parties. After the decree had been affirmed by the Federal Court, the defendants applied to the Calcutta High

Court that the decree be transferred to the Subordinate Judge''s court for execution. It is not clear why that application for transfer was made in the

appellate court, because, under S. 38 C.P. Code, a decree may be executed by the court which passed it and the expression ''''the court which

passed the decree"" is defined by S. 37 to include the court of first instance, where the decree to be executed has been passed in the exercise of

appellate jurisdiction.

But on the facts stated in the report of that case it appears that an application was made to the High Court of Calcutta for transfer of the decree to

the Subordinate judge''s Court and the High Court ordered the transfer. When the defendants applied for execution in the Subordinate Judge''s

Court, the plaintiffs objected to the execution on the ground that, because the firm whose shares along with the shares of the company had to be

transferred to the plaintiffs on payment of the sum mentioned in the decree had become dissolved by agreement between the partners, the

defendants had disabled themselves from performing their part of the obligations under the decree and could not therefore ask the plaintiffs to

perform their part. That objection was overruled by the Subordinate Judge on the ground that it could not be inquired into by him. On appeal the

High Court upheld the objection. The High Court''s decree was affirmed by the Supreme Court. In dismissing the appeal, their Lordships state,

In any case, if the appellant''s contention is pushed to its logical conclusion it would mean that whenever a decree is transferred all objection to

execution must cease unless the order of the court directing the transfer expressly enumerates the issues that the transferring court is at liberty to

determine. In our opinion S. 42 C.P.C. is a complete answer to his contention.

It is on that observation that the respondent''s learned counsel bases his request that the correctness of the decision in ILR 47 Mad 641: (AIR

1924 Mad 673) be referred for consideration by a Bench or a Full Bench. I do not consider that the observation of the Supreme Court in that

ruling affects the question decided in ILR 47 Mad 641: (AIR 1924 Mad 673). The plaintiffs in that case were not really objecting to the

executability of the decree. What they said was that, in order that the decree might be executed in accordance with its terms, the defendants should

transfer (or should be ready and able to transfer) the shares in the company and in the firm before they could call upon the plaintiffs to deposit the

money.

The plaintiffs expressed their willingness, so far as could be judged from the report, to pay the money provided the defendants could perform or

were able and willing to perform their part of the obligation imposed by the decree. There was thus no objection to the executability of the decree

and the plea related only to the inability of the defendants to have the decree executed in accordance with its terms. That was an objection which

could be taken only in the court in which processes in execution had to be issued.

That was not an objection which could be taken in the court to which an application for transfer was made. The decision in Kalepalli

Rajitagiripathy Vs. Kalepalli Bhavani Sankaran and Another, relates only to objections which might be taken in the court to which an application

for transfer is made. It cannot be contended that the objection that the decree is barred by limitation is an objection which cannot be taken in the

court to which an application for transfer of the decree is made. But it is contended that it is not an objection which ought to be taken. On that

point Kalepalli Rajitagiripathy Vs. Kalepalli Bhavani Sankaran and Another, states that it is an objection which ought to be taken. The soundness

of that view cannot be called in question on the basis of the decision in Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Others, .

(7) The respondent''s learned counsel invited my attention also to the decision of the Full Bench of the High Court of Andhra Pradesh in Kammela

Somasekhara Rao Vs. Kammela Seshagiri Rao, . The Full Bench expressly dissents from the view of the law taken in Kalepalli Rajitagiripathy Vs.

Kalepalli Bhavani Sankaran and Another, . The learned Chief Justice read S. 39 of the CPC and stated:

It is manifest that this section does not lay any obligation on the transferor court to consider any objection regarding the executability of the

decree.

No such proposition seemed manifest to the learned Judges who decided Kalepalli Rajitagiripathy Vs. Kalepalli Bhavani Sankaran and Another, .

Speaking with respect, I am in agreement with the Judges who decided that case, and, with respect, am unable to agree with the view of the law

taken in Kammela Somasekhara Rao Vs. Kammela Seshagiri Rao, . I see no reason to refer the question to a Bench.

(8) The appeal is allowed. The judgments and decrees of the lower courts are set aside. The parties will bear their own costs in this appeal. The

decree-holder will have his costs in the court of first instance.

(9) Appeal allowed.