The President, Union Board and Another vs Sreemath Thirumala Venkata Srinivasacharyalu Ayyavarlu and Others

Burn, J.—We consider that the decision of the learned Subordinate Judge is undoubtedly correct. The facts are that the decree was passed

on the 21st February, 1928. On the 13th August, 1930, Rs. 1,200 was paid to the decree-holder out of Court and another Rs. 1,300 on the 24th

March, 1931. Up to that time no execution petition had been filed. The first execution petition filed in the case at all was E. P. No. 98 of 1933 filed

on the 25th September, 1933. The objection taken by the respondents who were judgment-debtors and sureties for the judgment-debtors was

that the execution petition was barred by limitation. The decree-holder relied upon M. P. No. 337 of 1930 which was a petition filed in the Sub-

Court, Ellore on the 29th September, 1930, and which runs as follows:

For the reasons stated in the accompanying affidavit the petitioner prays the Hon''ble Court may be pleased to record a payment of Rs. 1,200 in

part satisfaction of the decree.

The Court on 27th October, 1930, passed the following Order:

Allowed. Memo would have been sufficient.

The only question is whether this petition, M.P. No. 337 of 1930, was an application within the meaning of Article 182(5) of the Limitation Act

to take a step-in-aid of execution. The learned Subordinate Judge decided that it was not an application to take a step-in-aid of execution. Mr.

Kameswara Rao for the appellant admits that there is no decision of any Bench of this Court to the contrary. He has referred us to the decisions of

two single Judges reported in Narayana Nair v. Kunhiraman Nair (1924) 20 L.W. 190 and E. Chathukutty Vs. E. Raman and Others, . Those

were cases which did not deal expressly with this point, but in which the Judges made remarks obiter indicating that they considered such

applications to be applications to take a step-in-aid of execution. Mr. Kameswara Rao has also referred us to the cases reported in Tarini Dass

Bandyopadhya v. Bishtoo Lal Mukhopadyaya I.L.R.(1886) 12 Cal. 608 and Sujan Singh v. Hira.Singh I.L.R.(1890) 12 All. 399 (F.B.) in which it

was held that such applications are applications to take a step-in-aid of execution. It is clear, however, that those decisions have lost much of their

force after the decision of the Privy Council reported in (1928) L.R. 56 I.A. 30 (Privy Council) . Their Lordships of the Privy Council have stated

that they did not decide this point expressly but from the whole tenor of their judgment it is apparent that the authority of the rulings in Tarini Dass

Bandyopadhya v. Bishtoo Lal Mukhopadyaya I.L.R.(1886) 12 Cal. 608 and Sujan Singh v. Hira Singh I.L.R.(1890) 12 All. 399 (F.B.) is very

seriously impaired. Their Lordships have observed that under Order 21, Rule 2(1), Civil Procedure Code, the decree-holder does not really make

an application to the Court at all. What he does is to report that a payment towards the decree has been made out of Court. Thereupon the Court,

whether the decree-holder applies to the Court to do so or not, is obliged to record satisfaction, partial or complete as the case may be. It is not

necessary for the decree-holder to ask the Court to do anything. In the present case, as we have already observed, the petitioner prayed the

Hon''ble Court to be pleased to record the payment. To that extent it may be said that he did make an application. But how can this be said to be

an application to take a step-in-aid of execution? Mr. Kameswara Rao is not able to adduce any convincing argument on this point. The reasoning

in the judgments reported in Tarini Dass Bandyopadhya v. Bishtoo Lal Mukhopadyaya I.L.R.(1886) 12 Cal. 608 and Sujan Singh v. Hira Singh

I.L.R.(1890) 12 All. 399 (F.B.) is, we say with all respect, not clear to us. The words ""application to take a step-in-aid of execution"" are

extremely simple words and we find no difficulty in understanding them. If the Court is asked to take a step-in-aid of execution, it must, we think,

be a step which will bring execution nearer by however so little it may be. In this case all that the Court is asked to do is to record the payment of

Rs. 1,200 in part satisfaction of the decree. It is clear that when the payment is recorded the execution of the decree is not advanced in even the

slightest decree. We agree therefore that this petition M.P. No. 337 of 1930 was not an application to the Court to take a step-in-aid of execution

and therefore the decision of the learned Subordinate Judge that the execution petition filed on 25th September, 1933, was barred by limitation is

correct. This appeal is accordingly dismissed with costs.