SULTHAN ROWTHER Vs. MALUNGU SAHIB

JUDGEMENT

(1.) PETITIONER , Sulthan Rowther, was the defendant in S.C. No. 281 of 1952, on the file of the Subordinate Judge's Court, Tirunelveli, in which a decree was passed against him on 20th December, 1955. The decree -holder filed applications for transmission of the decree to the District Munsif Court, Tenkasi, for execution. By order on E.A. No. 7 of 1959 on the file of the Subordinate Judge's Court, Tirunelveli, within three years, the Subordinate Judge's Court, Tirunelveli, transmitted the decree to the District Munsif's Court, Tenkasi, on 26th January, 1959. Subsequently, the decree holder filed E.P. No. 44 of 1962 on 2nd January, 1962 in the District Munsif Court, Koilpatti, and it was dismissed on 3rd March, 1962 on the ground that the decree was not transmitted to that Court and that the execution proceedings should be taken in the District Munsif Court, Tenkasi, and that petition was dismissed as not pressed on 18th March, 1963. The present E.P. No. 88 of 1967 was filed in the District Munsif's Court, Koilpatti, to realise Rs. 853.67, by the sale of the Immovable properties of the petitioner within the jurisdiction of the District Munsif's Court, Koilpatti, after getting the transmission order from the District Munsif's Court, Tenkasi.

(2.) BOTH the Courts below found that the execution petition was not barred by limitation on account of the new Limitation Act (XXXVI of 1963). But the District Munsif dismissed the execution petition as not maintainable on the ground that E.P. No. 44 of 1962 was not in accordance with law and that the decree was not transmitted by the Subordinate Judge's Court, Tirunelveli, which passed the decree. The lower appellate Court also held that E.P. No. 44 of 1962, on the file of the District Munsif Court, Koilpatti, which had no jurisdiction to entertain the petition, could not be treated as a step in aid. But it held that by virtue of Article 136 of the new Limitation Act (XXXVI of 1963), the execution petition was not barred by limitation.

(3.) THE finding of the Courts below that E.P. No. 44 of 1962 on the file of the District Munsif Court, Koilpatti, is not in accordance with law is correct. By virtue of a notification of this Court in P.Dis. No. 301 of 1961, dated 18th April, 1961, the small cause powers of Subordinate Judge's Court, Tirunelveli, were withdrawn and thereafter the execution petitions even in respect of small cause decrees like the present one which remained unsatisfied could be entertained only in the District Munsif Court, having jurisdiction in the subject -matter of the suit. It is an undisputed fact that the District Munsif Court, Tenkasi alone was the Court having jurisdiction, and not the District Munsif Court, Koilpatti. Thus E.P. No. 44 of 1962 on the file of the District Munsif's Court, Koilpatti was not entertained by that Court as the decree was not transmitted to it by the Court which passed the decree before the date of the notification, or the District Munsif's Court, Tenkasi, subsequently. I sent for the records in E.P. No. 44 of 1962, on the file of the District Munsif Court, Koilpatti, and satisfied myself about the same. The words in accordance with law " in Article 182(5) of the old Limitation Act (IX of 1908) are adjectival not only to the words" to the proper Court for execution," but also to the words " to take some step in aid of execution." Therefore it is necessary that in order to rely on E.P. No. 44 of 1962 as a step in aid of execution, it should be one in accordance with law. Hence an application for execution made to a Court which has no jurisdiction to entertain it is not an application in accordance with law. The finding of the Courts below that E.P. No. 44 of 1962 was not in accordance with law is correct and it cannot be relied as a step in aid of execution. If E.P. No. 44 of 1962 on the file of the District Munsif Court, Koilpatti is excluded, the present execution petition got barred by limitation before the new Limitation Act (XXXVI of 1963) came into force on 1st January, 1964.