SSUNDARA RAO Vs. BAPPIAH NAIDU AND

JUDGEMENT

(1.) The appellant is a judgment-debtor who has failed in both Courts in his contention that the decree, execution of which, is sought by respondent 1, is inexecutable. The decree is for payment of money by the appellant and another. It was passed in the Court of the First Munsiff, Bangalore, on 28-8-1932 and transferred on the application of the decree-holder, more than once to the Court at Mysore where the appellant resides. The first order for transfer was made on 7-6-1935 in Execution Case No. 1048 of 34-35, the second was On 22-7-1938 in Execution Case No. 1092 of 37-33, the next one was in Execution Case No. 949 of 40-41 on 14-10-1941. After this, Execution Case No. 643/41-42 was filed in the First Munsiff's Court Mysore, for executing the decree but dismissed on 29-5-1942 on account of non-payment of process. Transfer of the decree was again applied for in Execution Case No. 547/42-43 on the file of the First Munsif, Banealore, and obtaining order for the same on 23-2-1942, respondent 1 instituted Execution Case No. 850/42-43 in the Court of the First Munsif, Mysore, for recovery of the amount by arrest of the appellant and attachment of his moveable properties.

(2.) The objections to the execution raised in the Courts below and repented here are, that mere filing of successive applications for transfer of the decree does not extend the time for purpose of execution, that the first application for execution, Execution Case No. 643/41-42 being filed more than 6 years from the date of decree, there is bar of limitation. As an additional reason for the same it was pointed out that more than three years from the date of disposal of the previous application had elapsed when copy of the decree was filed in Execution Case No. 1092/37-38 and that the later applications for transfer were filed without. report of non-satisfaction from the transferee Court.

(3.) The points for consideration chiefly are whether application for transfer is a step-in-aid of execution which would enlarge the period of limitation, whether production of copy of the decree is necessary for an application for transfer and whether a second or subsequent application for transfer is of no effect if at the time it was filed there was no report of non-satisfaction of the decree from the transferee Court to the Court which passed the decree. It cannot be denied that transfer of the decree is a necessary preliminary to the execution of the same in another Court and as such is a "step-in-aid" of execution. The opinion of the Full Bench in --'25 Mys. C. C. R. 298 (A)' is sufficient authority for this. As expressed in --'Manmatha Pal v. Sarada Prasad', MB 1933 Cal. 651 at p. 655 (B)