SADAKSHARAPPA KABBUR Vs. KARLINGAWA KARADI

JUDGEMENT

(1.) THE appellants in both these appeals are assignees of the decree-holder of two decrees obtained against two judgment-debtors, the dates of the decrees being August 14, 1930, and August 4, 1928. THE questions involved in both the appeals are the same. I shall take the facts in second appeal No.665 of 1942. In that case the decree was passed on August 14, 1930. Darkhast No.323 of 1933 was the first darkhast filed on April 11, 1933, to: execute it. On a third party objecting and claiming interest in the property sought to be proceeded against the darkhast was dismissed on February 20, 1936. THE present darkhast, being the second darkhast, was filed on June 9, 1939, that is, more than three years after the last darkhast was disposed of. THE appellants sought to bring it within time relying on a suit, namely suit No.75 of 1936, which was filed by them under the provisions of Order XXI, Rule 63, Civil Procedure Code, for a declaration that the property was liable to be sold as belonging to the judgment-debtor, although it had been alienated to the person who objected in the earlier darkhast, the alienation being bad under Section 53 of the Transfer of Property Act, 1882. THE decree-holder succeeded in this suit and thereafter filed the present darkhast. THE only question arising in this appeal is whether the present darkhast is in time. THE answer to that question depends upon the construction to be placed on Clause 5 of Article 182 of the first schedule to the Indian Limitation Act, which gives a period of three years from the date of the final order passed on " an application made in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order.

(2.) BOTH the Courts below have held against the appellants, holding that the suit of 1936 cannot be regarded as an application to take some step in aid of execution within the meaning of Article 182, Clause 5 The lower appellate Court has further held that the Court in which the suit was filed cannot be regarded as the proper Court within the meaning of the said article. The appellants relied on two Oudh cases, Hasan Shah v. Md. Amir [1930] A. I. R. Oudh 468 and Rudra Narain v. Maharaja of Kapurthala [1936] A. I. R. Oudh 248, as well as on Vishvanath v. Narsu (1920) 23 Bom. L. R. 107. The lower appellate Court has held that the Bombay decision is inapplicable and preferred to follow the rulings of the High Courts of Madras, Calcutta and Nagpur in Ramasubbayya v. Thimmiah [1942] A. I. R. Mad. 5, Raghunmdun Pershad v. Bhugoo Lall (1889) I. L. R. 17 Cal. 268 and Rajaram v. Paiku [1940] Nag. 334 which decided/first, that the plaint in a declaratory suit like the one which is relied on in this appeal cannot be regarded as a step in aid of execution within Article 182 (5) of the Indian Limitation Act, and, secondly, that the Court in which the suit under Order XXI, Rule 63, is filed cannot be regarded as the proper Court within the meaning of the said article. The decision in the two Oudh cases is to the effect that in such a case the suit can be regarded as an application to take a step in aid of execution.

(3.) THE appeals, therefore, fail and are dismissed. Divatia, J.