Rampalli Ramachandrudu vs Bakraj Gulab Chand Firm by Gulabchand and others

K. Subba Rao, C.J.—These two civil miscellaneous appeals arise out of two orders made by the District Judge in E. P. No. 21 of 1948 and both the appeals raise the same questions namely, whether the Execution Petition was maintainable and whether it was barred by limitation.

The facte relevant may be briefly stated. On 8-3-1936, the respondents obtained a decree in O. S. No. 18 of 1934 against the appellant for money. On 19-11-1936, the decree-holders filed E. A. No. 301 of 1936 on the file of the Court of the District Judge for transmission of the decree for execution to the District Munsif''s Court, Kovvur. Thereafter the decree-holders filed E. P. No. 596 of 1936 on the file of the Court of the District Munsif, Kovvur, on 6-12-1936, for recovering the amount by the sale of the properties belonging to the judgment-debtor.

The judgment-debtor filed an application for amendment of the decree under the provisions of the Madras Agriculturists'' Relief Act and the decree was amended on 29-11-1944. There was an appeal against that order to the High Court and the High Court confirmed the order of. the District Munsif on 8-3-1946. Meanwhile, one of the decree-holders died and it became necessary to bring his legal representative on record. The decree-holders filed a petition onl-2-1948, in the District Munsif''s Court, Kovvur, for retransmitting the record to the District Court, Rajahmundry, with non-satisfaction certificate u/s 39, Civil Procedure Code. A note was appended to that petition as follows

Plaintiff will take action after the L. Rs. added and the decree retransmitted here. E. P. No. 596 of 1936 will be open and continue.

The District Munsif ordered transmission on 5-2-1948. The order runs Ordered that a copy of this order be sent to the District Court, Rajahmundry, with a copy of the decree and of any order which may have been made for execution of the same and a certificate of non-satisfaction.

A certificate of non-satisfaction was issued and the record was duly sent to the District Court, Rajahmundry, which received it on 16-2-1948, The order did not state expressly or by necessary implication, that the execution application filed in that Court would be pending till the decree transmitted to the District Court was retransmitted to the Kovvur District Munsif''s Court. After the records were received by the District Court, the present E. P. No. 21 of 1948 was filed in the District Court ON 9-2-1948. The learned Judge, on 25-2-1953, at the instance of the judgment-debtor made an older which for convenience may be called an interim order transmitting the decree to the Tanuku District Munsif''s Court reserving the decision on other questions raised by the judgment-debtor for future consideration. On 20-7-1953, after hearing the objections raised by the judgment-debtor to the maintainability of the application, the learned District Judge held that the application was maintainable and that it was in time.

As by the earlier order, he had directed transmission of the decree to the Tanuku District Munsif''s Court for execution and nothing further was required to be done in the District Court, he directed the Execution petition to be closed. C. M. A. No. 642 of 1953 was filed against the final order and C. M. A. No. 95 of 1953 was preferred against the earlier order.

Learned counsel Mr. Balapararfteswari Rao has reiterated the arguments raised on behalf of the judgment-debtor in the Court below without any success. We shall, therefore, proceed to consid(sic) his arguments seriatim.

It is contended that there was no retrar(sic) (sic)mission of the decree by the Kowur District musif''s Court to the District Court, Rajahmundry, accordance with law and, therefore, the Dis(sic) Court had no jurisdiction to entertain the app(sic) (sic)tion. Reliance is placed upon the decisions of(sic) Division Benches of the Madras High Court, one Nagireddi v. Kotamma, 1947 1 Mad LJ 156: (sic) 1947 Mad 431) (A), & the other in P.L.N.K.M. Nagappa Chettiar Vs. P.L.N.K.M.L. Lakshmanan Chettiar (dead) and Others, . It was held in those cases that the (sic) which passed the decree, had no jurisdiction to(sic) (sic)terrain an execution application unless concurr(sic) execution has been ordered, or unless the pro(sic) (sic)ings in the Court to which the decree was sent been stayed for the purpose of executing the de(sic) in the first Court. So stated, the proposition is unexceptiom(sic) Indeed, that is not contested "by the learned court for the respondents. But the learned counsel the respondents argues that in this case the de(sic) transmitted to the Kovvur District Munsif''s C(sic) had been legally retransmitted and, therefore, District Court had become seized of the juris(sic) (sic)tion to entertain the execution application, procedure to be followed for retransmitting a de(sic) to the parent Court is prescribed by Section Civil Procedure Code, which reads :

The Court to which a decree is sent for ex(sic) (sic)tion shall certify to the Court which passed it, fact of such execution or where the former C(sic) (sic)fails to execute the same, the circumstances att(sic) (sic)ing such failure.

As we have already stated, in the pr(sic) (sic)case, the District Munsif''s Court, Kowur, folio(sic) the procedure prescribed transmitted the decre(sic) the District Court, Rajahmundry and also se(sic) certificate of non-satisfaction. The decree did reserve any part of the execution proceeding disposal in that Court. The decree, in our therefore, had been duly and properly retransr(sic) and the District Court, Rajahmundry, had jur(sic) (sic)tion to entertain the execution application.

It is then contended that the exec(sic) application, dated 9-2-1948, was barred by li(sic) (sic)tion. To appreciate this argument, some ma(sic) dates may be recapitulated. The decree was on 8-3-1936. The previous application for e(sic) (sic)tion, E. P. No. 596 was filed on 6-12-1936. decree was amended under the provisions (sic) Madras Agriculturists'' Relief Act on 29-11-194(sic)'' the order of amendment was confirmed by the Court on 8-3-1946. The application for transmission was ma(sic)1-2-1948 and was ordered on 5-2-1948. L(sic) counsel for the appellant argues that E. P. N(sic) of 1936 had ceased to have any legal force the decree was amended on 29-11-1944 ar(sic) present application E. P. No. 21 of 1948 (sic) been filed more than three years from the d(sic) the amended decree, the application was ban(sic) limitation.

A Division Bench of the Madras High in Gada Venkata Subbayya Vs. Koyallamudi Venkanna, negatived a(sic) contention. There, pending an execution a(sic) (sic)tion, the decree was amended u/s the Madras Agriculturists'' Relief Act. Mor(sic) three years after the Order scaling down the the decree-holder filed an application to bri(sic) execution petition to the pending list and i(sic) tinue further execution". It was contended in that case, as it is c(sic) (sic)ed before us, that as the decree was actually (sic) on 31-1-1941 and as "that was the decree which (sic)d to be executed, the application for execution (sic)ould have been filed within three years from the (sic)te of the order scaling down the decree and that; (sic)that application was filed more than three years (sic)er the date, the decree-holder''s right had become (sic)rred. Negativing that contention, the learned (sic)ief Justice observed :

The fallacy in this argument is to treat the (sic)led down decree as a fresh decree and to assume (sic)t the decree-holder gets a fresh starting point (sic)tn the date of the order scaling down the decree, (sic)t only is there no authority in support of the (sic)ellant''s contention but there is authority for the (sic)ition that a scaled down decree is not a fresh (sic)aree and even after scaling down, what can be (sic)cuted is only the original decree though the (sic)mnt for which execution can be levied might be (sic) than the amount of the original decree.

We respectfully accept the observations of (sic)learned Chief "Justice. It follows that, though decree was amended, E. P. No. 596 of 1936 (sic)t be treated as an execution application to exe-(sic) (sic)t the amended decree. If so, the order of trans-(sic) (sic)ion put an end to the excitability of the decree (sic)lat Court for we have held that, notwithstanding (sic)prayer of the judgment-debtor to keep the Exe- (sic)on Petition Pending in that Court, the decree (sic)transmitted by the District Munsif without any reservation.

There is also authority for die position that (sic)rder of transmission of a decree is a step-in-aid (sic)tecution of a decree. A Division Bench of the (sic)ras High Court in Andalamma v. Venkatacha Chetti, (sic)1954 2 Mad LJ 195: (AIR 954 Mad (D), held that an application to retransmit the (sic)ee to the Court which passed it is one mode to (sic)iroper Court and the order therein saves limita(sic)- (sic)Following that decision, we hold that the made in the application for retransmitting the (sic) was a step-in-aid within the meaning of (sic)le 182 of the Limitation Act and would save (sic)ar of limitation.

It is, then contended that only one of the (sic)e-holders applied for execution of the decree (sic)ut written authority from others and, therefore, (sic)pplication was not one in accordance with law.(sic)port of this contention reliance is placed upon 147 of the Civil Rules of Practice: Where an application is made by one or more (sic)era! joint decree-holders, unless a written (sic)ity signed by the other decree-holders for the ant to execute the decree and to receive the (sic) or property recovered, is filed in Court, the shall give notice of the order,, if any, passed (sic)p execution of the decree, to all the decree-(sic)s who have not joined in the application; and also in its discretion give notices of any appli(sic)- for payment out of Court or delivery to the (sic)int, of any money or property recovered in (sic)ion." Order 21, Rule 15, Civil Procedure Code, em (sic)s one of the decree-holders, unless the decree (sic)s any condition to the contrary, to apply for (sic)cution of the whole decree for the benefit of 11 or, where any of them has died, the bene(sic) (sic)he survivors, and the legal representatives of (sic)ceased. Rule 2 enables the Court to make (sic)sr as it deems necessary for protecting the (sic)s Of the persons who have not joined in the (sic)tion.

(sic)hat is left to the discretion of the Court (sic)Rule 2 is elucidated under Rule 147, Civil of Practice, and a specific procedure is pres(sic) thereunder for protecting the interests of the (sic)lecree-holders. -This rule is conceived in the interests of joint decree-holders and to prevent (sic)fraud being effected by one of them on others. the judgment-debtor is not affected by the infringement of the Rule and, therefore, he has no right to question the maintainability of the application on that ground.

The decree-holders, for whose benefit that provision was made, did not raise any objection to the maintainability of the application. Indeed, it is represented to us that the same advocate filed a (sic)wakalat for all the decree-holders, which is a clear indication that the other decree-holders had no objection tor the respondents filing an application on their behalf. There are no merits in this objection.

Lastly, the learned counsel raised the question that the District judge had no concurrent jurisdiction to direct execution. In the view we have expressed, viz., that after the order of re-transmission the execution proceedings were not pending in the Kowur Munsirs Court, this question does not arise for consideration.

In the result, both the appeals fail and are dismissed with costs in C. M. A. No. 642 of 1953.