Roma Nath Sen and others vs Gouri Sankar Khatree

Maclean, C.J.—Notwithstanding the somewhat subtle and ingenious argument which has been addressed to us by the learned vakil for the Appellants as to the true construction to be placed upon the words "proper Court" and "step in aid of execution " in art. 179 to the second schedule of the Limitation Act, I consider this case is governed by the case of Chundra Nath Gossami v. Guroo Prosunno Ghose I. L. R. 22 Cal. 375. That decision seems to me to be in accordance with law and consonant with good sense. It is important that in matters of practice and procedure, there should be unanimity of view between the various Benches of this Court. I dismiss the appeal with costs.

Banerjee, J.

I am of the same opinion. The question raised before us is, whether an application to the Court which passed the decree, for the transfer of the decree to another Court for execution is an application within the meaning of cl. 4 of art. 179 of the second schedule of the Limitation Act and gives the decree-holder a fresh starting point to reckon limitation from. The learned vakil for the Appellants contends that though the question is answered in the affirmative in the case of Chundra Nath Gossami v. Guroo Prosunno Ghose I. L. R. 22 Cal. 375. We ought to reconsider that decision, because in that decision effect has not been given to the words "proper Court" occurring in cl. 4 referred to above, the proper effect of those words according to Explanation II being that they can only refer to the Court in which an application for execution has already been made.

There is some apparent force in this contention, but I must say that the contention is not really sound. An application to the Court which passed the decree to transfer it to some other Court for execution, is, evidently, an application to that Court to take some step in aid of execution of the decree, because where a decree-holder finds that satisfaction of the decree cannot be obtained by any process within the jurisdiction of the Court which passed it, he can obtain satisfaction only by execution issued out of some other Court, and it is a necessary preliminary, as provided by sec. 223 of the Code of Civil Procedure, for the issue of such execution, that an application should be made to the Court which passed the decree, to send it for execution to such other Court.

A distinction was sought to be drawn between an application in aid of execution and an application to initiate an execution, and it was argued that the words "in aid of execution" can properly apply only to a case in which an application for execution has already been made. But I do not think that there is any reason for putting that restricted meaning upon the words "in, aid of execution." Then, it was contended, that cl. 4 of art. 179 requires the application to be made to the "proper Court," and the expression "proper Court," as defined in Explanation II of that article, can only refer to a Court of execution, and not to the Court which originally made the decree. Here, again, I do not see any good reason for restricting the meaning of these words in the manner contended for. The explanation does not restrict the meaning of the words in any way. The Explanation says: "''Proper Court'' means the Court whose duty it is (whether under sec. 226 or 227 of the Code of Civil Procedure, or otherwise) to execute the decree or order." It was primarily the duty of the Court, to which this application for transfer of the decree was made, to execute the decree, as will appear from sec. 223. Therefore, neither of the two expressions, "proper Court" and "in aid of execution," should, in my opinion, have the limited interpretation that was contended for; and I see no good reason for doubting the correctness of the decision in Chandra Nath Gossami v. Gurroo Prosunno Ghose I. L. R. 22 Cal. 375.