LAWS(BOM)-1942-3-9

RAMLAL HARIRAM AGARWALE Vs. RATANLAL BALCHAND AGARWALE

Decided On March 09, 1942
RAMLAL HARIRAM AGARWALE Appellant
V/S
RATANLAL BALCHAND AGARWALE Respondents

JUDGEMENT

(1.) THIS is an appeal in execution proceedings which raises an interesting point of limitation.

(2.) THE respondent obtained a decree against the appellants in a suit for sale on a mortgage for Rs. 54,000 and odd. THE suit was filed in the Court of the Additional District Judge of Akola. THE preliminary decree was made on September 30, 1926, and the final decree on July 2, 1927. As the mortgaged property was in the jurisdiction of the First Class Subordinate Judge of East Khandesh, the respondent applied in October, 1927, for transfer of the decree to that Court. An order of transfer was made on December 22, 1927, and the documents required by Order XXI, Rule (5, i.e. a copy of the decree and certificate of non-satisfaction, were sent to the Court at Jalgaon on September 3, 1928. A darkhast was filed to recover the amount of the decree by sale of the property, but there were no bidders and on that ground the darkhast was disposed of on March 22, 1933.

(3.) THE question whether the darkhast is barred by limitation depends on whether the application of December 4, 1935, which the respondent made to the Akola Court was an application in accordance with law to the proper Court to take a step-in-aid of execution within the meaning of Article 182 of the Indian Limitation Act. THE gist of the argument for the appellant is that as the Akola Court had transferred the decree for execution to the Jalgaon Court and the latter Court had not returned the papers with a certificate under Section 41 of the Civil Procedure Code, the former Court had no jurisdiction to order re-transfer to the Jalgaon Court, and therefore the application made to the Akola Court was not made to the proper Court and could not save limitation.