Sital Prasad Shukul and Another vs Babu Lal Shukul and Another

This appeal arises out of an execution case. The simple issue involved is whether the execution of the decree in question is barred by limitation. The plaintiff instituted a partition suit valuing it at Rs. 76,887-1-8. The suit went up to the High Court and the final decree was passed on 31st January 1923. The execution relates to the costs of the suit awarded by the High Court amounting to Rs. 649-11-0. Several applications for execution were filed and dismissed. The last one about which no objection can be raised was the fourth one taken out on 27th August 1924, and disposed of on 17th September 1924.

After that on 26th July 1927, the appellants asked the Subordinate Judge of Chupra, who shad decided the case, to send the decree for execution to the Munsif of Siwan. It is obvious that so far as this province is concerned the Munsif of Siwan had no jurisdiction to execute the decree, as it was passed in a suit beyond the limits of his pecuniary jurisdiction. Be that as it may, the learned Subordinate Judge did as a matter of fact transfer the decree for execution to the Munsif of Siwan. The decree holders appellants took out two executions in that Court. The second one pi them was disposed of on 25th July 1929. In that execution the judgment-debtors took an objaction about the jurisdiction of the Munsif of Siwan to execute the decree. The learned Munsif decided against them, but on appeal the objection was upheld, and it was decided that the Court of the Munsif of Siwan had no jurisdiction to execute that decree. Afterwards the present execution was started on 25th March 1930, and this execution is the subject matter of the present appeal.

The learned Subordinate Judge has held that the execution was barred, holding that the application of 26th July 1927, asking the Subordinate Judge of Chupra to transfer the decree for execution to the Munsif at Siwan was not a step-in-aid of execution. He has relied upon a decision of this Court in Amrit Lal v. Murlidhar AIR 1922 Pat. 188. He has also discussed the question whether the decree-holders were entitled to avail themselves of the provisions of Section 14, Lim. Act, and to deduct the period during which they were engaged in executing their decree in the Court of the Munsif of Siwan and has held that there was no good faith on the part of the decree holders and therefore Section 14, Lim. Act, had no application. It is not necessary for us to decide about the applicability of Section 14, Lim. Act. It is clear on the facts before us that Section 14 even if applicable will be of no help to the decree-holders.

Assuming that they are entitled to deduct the period during which they were taking out executions before the Munsif of Siwan, even then the present application is barred by limitation. Utmost that they can claim is to deduct the period between 26th July 1927 (when they applied before the Subordinate Judge of Chupra to transfer their decree to the Munsif at Siwan) and 25th July 1929, (when their second and last application for execution before the Munsif of Siwan was disposed of). If this period is deducted from the period of five years six months and eight days which lapsed between 17th September 1924 (when their last execution before the proper Court, namely the Subordinate Judge of Chupra was disposed of) and 25th March 1930 (when their present application was filed), there will still be a delay of six months and eight days which the decree-holders cannot in any circumstances be permitted to deduct. In fact when this was pointed out to the learned advocate for the appellants by the learned advocate for the respondents the former conceded that Section 14, Lim. Act, could be of no help to him in this case.

Now the simple question as contended by the learned advocate for the appellants is whether the application of 26th July 1927, asking the Subordinate Judge of Chupra to transfer the decree to the Munsif of Siwan was a step-in-aid of execution. To our mind this point is concluded by the decision of this Court referred to by the learned lower Court, namely, Amrit Lal v. Murlidhar AIR 1922 Pat. 188. That case was exactly like the present ne. There also a decree passed by the Subordinate Judge of Gaya was sent for execution to the Munsif of that place. this Court held that when a decree-holder asks a Court to do a thing which the Court is not empowered to do, such an application cannot be held to be a step-in-aid of execution. This being the case, the application of 26th July 1927, can in no circumstance be held to be a step-in-aid of execution. The learned advocate, however tried to distinguish that case from the present one on the ground that in the present case the application was in a form prescribed by Order 21, Rule 11, and was therefore an application for execution, whereas there is nothing to show that the application in the case of Amrit Lal AIR 1922 Pat. 188 was so. We do not think that the form of the application has any bearing upon this question. An application for transfer of a decree to another Court for execution need not be on any particular form.

The Code does not prescribe any such form. The form prescribed in Order 21, Rule 11, is a form in which a decree-holder may apply for execution of his decree. Application for executing a decree and application for transferring a decree to another Court for execution are two different and distinct applications. Whether a particular application is an application for execution or for transfer of a decree is to be decided on the nature of the prayer made, and not on the choice of a particular form. An application for transfer of a decree for execution cannot become an application for execution simply because the form of the latter has been adopted. The fact that in the present case the application for transfer was on a form prescribed for application for execution will not make it effective when the decree-holders asked the Court to do a certain thing which the Court was not empowered to do that is to send the decree for execution to the Court of the Munsif of Siwan which had no jurisdiction to execute that decree.

Reliance has been placed upon the case of Maharaja of Bobbili v. Sree Rajah Narasaraju A. I. R. 1916 P.C. 16. We fail to understand how that case helps the appellants. In fact it was definitely held there that an application for execution presented to a Court which had no jurisdiction to execute the decree was not a step-in-aid of execution and therefore will not save limitation. The learned advocate relied upon this case to show that a decree of the District Judge was transferred for execution to a District Munsif and that the Privy Council impliedly accepted the procedure to be correct; but there is nothing in that judgment to show the value of the suit, or whether the suit in which the decree was passed was beyond the pecuniary jurisdiction of the Munsif to which Court it was sent for execution. Another case relied upon by the learned advocate is the case of Kishore Mal and Another Vs. Jagdish Narain Singh, . The only thing decided in that case was that some formal defect or some superfluity added to an execution application will not take away that application from the purview of Sub-Clause (5), Article 182, Lim. Act.

We have said before that in this case the application which the appellants want to bring to their help was not an application for execution at all. Few more cases have been cited by the learned advocate, but none of them is of the least assistance to him. In our opinion the learned Subordinate Judge is correct in holding that the decree under execution is barred by limitation. The appeal is dismissed with costs.