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1916 DIGILAW 45 (SC)

MAHARAJAH OF BOBBILI v. NARASARAJU PEDA SRINHULU

1916-07-14

LORD ATKINSON, LORD BUCKMASTER, SIR JOHN EDGE

body1916
Judgement Appeal from a decree of the High Court (May 2, 1912) affirming an order of the District Judge of Vizagapatam. The appellant on April 5, 1904, obtained a money decree against the respondents in the Court of the District Judge. In September, 1904, the decree was sent upon his petition and under s. 223 of the Code of Civil Procedure, 1882, to the Court of a Munsif for execution against property within the jurisdiction of that Court; it remained unexecuted in that Court until August, 1910. In January, 1908, the appellant petitioned the District Court for execution of the decree and that notice under s. 248 of the Code of Civil Procedure, 1882, might be issued to the respondents, but this petition was not proceeded with. On April 27, 1910, he made the present application to the District Judge for execution of the decree by the sale of property which had been attached by the Court of the Munsif. The District Judge held that the application of January, 1908, was not made to the " proper Court " within the Limitation Act, 1908, Sched. I, art. 182 (5.), and that the three years period of limitation provided by that Article consequently ran from the date of the decree and that the application was barred; he also held that the present application was made to the wrong Court. The High Court affirmed the decision. The learned judges (Sankaran Nair and Ayling JJ.) said that although concurrent execution of a decree was possible, it could be carried out only under an order permitting it; the Munsif s Court had seisin of the execu tion proceedings, and there was no order of the District Court staying execution proceedings in the Munsif s Court. 1916. June 23. De Gruyther, K.C., and Dube, for the appellant. The District Judge was not deprived of jurisdiction over the decree by sending it to the Munsifs Court for execution Baij Nath Goenka v. Holloway. (( 1905) 1 Calc. L. J. 315.) The application of January, 1908, was made to the " proper Court " within the meaning of art. 182. The District Judge could have made an order under s. 248 of the Civil Procedure Code, which was a " step in aid of execution." The question is not whether that application was irregular, but whether the District Judge had jurisdiction. The respondents did not appear. 182. The District Judge could have made an order under s. 248 of the Civil Procedure Code, which was a " step in aid of execution." The question is not whether that application was irregular, but whether the District Judge had jurisdiction. The respondents did not appear. July 14. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal from a decree, dated May 2, 1912, of the High Court at Madras, which affirmed an order dated October 25, 1910, of the District Judge of Vizagapatam dismissing an application of April 27, 1910, for the execution of a decree of April 5, 1904, on the ground that the application was time-barred when it was made. The question as to whether the application of April 27, 1910, was barred by limitation depends on whether a previous application for the execution of the decree which had been made on December 13, 1907, was made to the proper Court within the meaning of art. 182 of the First Schedule of the Indian Limitation Act, 1908. The period of limitation applicable in this case was three years from the date of applying in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree. The respondents have not appeared and have not been represented in this appeal. The facts, as their Lordships have ascertained them from the papers in the record before them, may be briefly stated. The appellant on April 5, 1904, obtained a money decree against the respondents in the Court of the District Judge of Vizagapatam. The respondents have not appeared and have not been represented in this appeal. The facts, as their Lordships have ascertained them from the papers in the record before them, may be briefly stated. The appellant on April 5, 1904, obtained a money decree against the respondents in the Court of the District Judge of Vizagapatam. In September, 1904, the appellant presented a petition to the Court of the District Judge by which he prayed that the decree should be sent to the Court of the Munsif of Parvatipur for execution, on the ground that the properties of the respondents were situate within the local limits of the jurisdiction of the Court of the Munsif, and thereupon the District Judge by his order of September 30, 1904, made under s. 223 of the Code of Civil Procedure, 1882, sent the decree for execution to the Court of the Munsif of Parvatipur, and in compliance with s. 224 of that Code sent to the Court of the Munsif (a) a copy of the decree, (b) a certificate that satisfaction of the decree had not been obtained by execution within the jurisdiction of the District Court, and (c) a certificate that no order for the execution of the decree had been made except the order for the transfer of the decree. On the application of the appellant the Court of the Munsif of Parvatipur in execution of the decree attached immovable property of the respondents which was within the local limits of the jurisdiction of that Court. Subsequently on March 10, 1905, two months time was, on their application, granted by the Court of the Munsif under s. 305 of the Code of Civil Procedure, 1882, to the respondents, and it is stated that the petition for execution was dismissed. No further steps were taken to get the decree executed by the Court of the Munsif. On July 9, 1907, the appellant applied to the Court of the Munsif for a copy of the decree which had been sent to that Court under s. 224 of the Code of Civil Procedure, 1882, and by order of the head clerk of the Court of the Munsif of July 11, 1907, he was informed that " No copy of decree in record. It appears that it was return d to the District Court with non-satisfaction certificate." That information was incorrect. It appears that it was return d to the District Court with non-satisfaction certificate." That information was incorrect. On December 13, 1907, the appellant presented a petition to the Court of the District Judge in which he alleged that he had presented in 1905 a petition to the Court of the Munsif of Parvatipur for the attachment of the immovable property of the respondents, that the attachment was made, and that subse quently the decree had been retransferred to the District Court; and prayed (1.) " that the property described in the schedule hereto attached may be sold under s. 287 of the Civil Procedure Code for-the realization of the amount mentioned in column 8, and further costs in execution " ; and (2.) that notice under s. 248 of the Code of Civil Procedure, 1882, might be issued to the respondents. No property was, in fact, described in the schedule, but in their Lordships opinion it is plain that the object of this petition was to obtain from the Court of the District Judge an order for the sale of the property which had been attached by order of the Court of the Munsif. The petition, being defective, was returned to the appellant for amendment, and without having been amended was again presented to the Court of the District Judge on January 28, 1908 ; the fact that it had been presented was, by order of the District Judge, recorded on March 25, 1908, but nothing further appears to have been done on that petition. The next thing which happened was that on April 27, 1910, the appellant presented to the Court of the District Judge a petition for the execution of the decree by sale of the immovable property which had been attached by the Court of the Munsif. In that petition the appellant alleged that the decree had been returned by the Court of the Munsif to the Court of the District Judge. On July 12, 1910, the District Judge directed that the Munsif or Parvatipur should be requested to report whether the copy of the decree was retransmitted to the District Judges Court, and, if so, when. On August 3, 1910, the Munsif of Parvatipur returned to the Court of the District Judge the copy of the decree which had been sent to the Munsifs Court for execution and the certificate of non-satisfaction. On August 3, 1910, the Munsif of Parvatipur returned to the Court of the District Judge the copy of the decree which had been sent to the Munsifs Court for execution and the certificate of non-satisfaction. In October, 1910, the District Judge proceeded to deal with the petition of April 27, 1910, of the appellant, who was represented by a vakil, and on October 25, 1910, held that the petition of April 27, 1910, had not been presented to the proper Court, and that the petition of December 13, 1907, not having been presented to the proper Court, the presentation of the latter petition did not prevent limitation running, and dismissed the application for execution as having been time-barred, and also apparently as having been presented to the wrong Court. The appellant appealed to the High Court at Madras, which by its decree of May 2, 1912, affirmed the order of the District Judge of October 25, 1910. From that decree of the High Court this appeal has been brought. As the decree of April 5, 1904, had by order of the Court of the District Judge been sent on September 30, 1904, to the Court of the Munsif of Parvatipur for execution by the latter Court, and as the copy of the decree with the non-satisfaction certificate was not returned to the Court of the District Judge until August 3, 1910, and as the petition of December 13, 1907, was for execution of the decree by sale of the immovable property of the respondents which was within the local limits of the jurisdiction of the Munsif s Court, their Lordships, having regard particularly to ss. 223, 224, 228, and 230 of the Code of Civil Procedure, 1882, are satisfied that when that petition of December 13, 1907, was presented to the Court of the District Judge that Court was not the proper Court to which the application to execute the decree by sale of the immovable property which had been attached by the Court of the Munsif should have been made, and that the proper Court to which that application should have been made was the Court of the Munsif of Parvatipur, as that was the Court whose duty it then was to execute the decree so far as it could be executed by that Court. Consequently, the application by the petition of April 27, 1910, was, when made, time-barred under art. 182 of the First Schedule of the Indian Limitation Act, 1908, as no application had been made within three years in accordance with law to the proper Court for execution, or to take some step in aid of execution, of the decree. Further, their Lordships agree with the District Judge that the application of April 27, 1910, was not made to the proper Court. Their Lordships will humbly advise His Majesty that this appeal should be dismissed.