Raja Rajeswara Sethupathi alias Muthuramalinga Sethupathi (deaceased), Rajah of Ramnad, through his authorised Dewan T.S. Jambunatha Aiyar and Another vs Kuppuswami Pillai

Madhavan Nair, J.—The question in this appeal is whether the application for execution is barred by limitation. The decree is dated 1st

December, 1917. The application for execution was presented on 28th June, 1926, the date on which the first Court re-opened after the summer

recess of 1926. The prior execution application was ""presented on 1st February, 1923. It is clear that the present application would be barred by

limitation unless the facts relied upon by the decree-holder are sufficient to save limitation. The judgment-debtor was committed to jail on 28th

February, 1923. This decree-holder has remitted by postal money orders to the Jail Superintendent subsistence allowances necessary for the

detention of the judgment-debtor in prison. Those remittances had been made on 24th March, 1923, 23rd April, 1923, 23rd May, 1923 and 25th

June, 1923. It is argued that the remittance made on 25th June, 1923, is sufficient to save limitation as being a step-in-aid of execution. If this

payment could be considered to be a step-in-aid of execution, it is clear that the present application is not barred by limitation. The Lower Courts

held that as the payment was made to the Superintendent of Jail, it cannot be considered that the application was made to the ""proper Court

within the meaning of Article 182 of the Limitation Act, to save limitation and therefore the present petition is barred by limitation.

The respondent relies on a decision of this Court in Ramudu Chetti v. Varadaraja Chariari by Krishnan, J. The facts of that case are not very

clear. Apparently the learned Judge''s view is that if payment was made within three years of the prior application, then such payment would be a

step-in-aid of execution provided there was an application. And with regard to the application the learned Judge says:

We cannot presume that an application would have been made, when the decree-holder paid such charges.

Whether the application should be one to the Court or whether it would be enough if that was made to the Superintendent of Jail is not made

clear in that judgment. But both the Courts in that case seem to have been of the opinion that a payment of maintenance charges would be a step-

in-aid of execution. The first appellate Court did not consider the question whether there was an application at all because the payment in that case

was made admittedly three years after the previous application. Therefore I find that that decision does not render much help for deciding this case.

It is argued that the payment of maintenance charges should be to the Court and since it was not made into the Court, it cannot be said that

there was any request made to the Court to take a step-in-aid of execution. Under Order 21, Rule 39(4) Civil Procedure Code, the first payment

in connection with the arrest of the judgment-debtor is to be made to the Court and the subsequent payments should be made to the officer in

charge of the civil prison. So if an application was made to the Court on a subsequent occasion to receive the subsistence charges, that application

would not be an application in accordance with the provisions of Order 21, Rule 39(4) ; the application should be made according to the

provisions of the Code to the Superintendent of Jail who is constituted by the Code as the proper officer to receive the application. In my opinion

an application made to him should in the circumstances be considered to be an application made to the Court under Article 182(5) of the

Limitation Act.

The next question is whether it can be said that there was an application in this case. It is argued that there was no such application. The facts

show that the amounts were sent by money order. In the circumstances of the case I am inclined to accept the despatch by money order to the Jail

Superintendent as amounting to an application.

For the above reasons I am of opinion that the remittance made by the decree-holder on 25th June, 1923, in the present case is a step-in-aid of

execution and therefore the present application is not barred by limitation. In the result the orders of the Lower Courts are set aside, and the

petition will be taken on file and disposed of according to the merits by the District Munsif. The appellant will get his costs throughout.