RAJMAL DAGADURAM SHETH Vs. KISAN VINAYAK GUJAR

JUDGEMENT

(1.) THIS second appeal has been filed by a decree-holder whose Darkhast for the execution of his decree was dismissed by the Courts below on the ground of limitation. The decree was passed by the Court of the Civil Judge of Nasik and was transferred for execution to the Court of the civil Judge of Sinnar. The previous Darkhasts were filed by the Decree-holder for the execution of the decree and the last of these Darkhasts was disposed of on 15th April 1958. Then on 16th July 1958 the decree holder filed an application to the Nasik Court in which he stated that a mistake in the name of the third judgment-debtor had occurred in the copy of the decree which the Nasik Court had sent the Sinnar Court along with its transfer certificates, and that the record should be called for from the Sinnar-Court and be sent back after correcting the name of the 3rd judgment-debtor in the certified copy. This application was allowed by the Nasik Court on 14th September 1959. The present Darkhast was filed on 19th March 1962, that is, more than three years after the disposal of the third Darkhast but less than three years of the order passed by the Nasik Court on the aforesaid application of the decree-holder. It was the case of the decree-holder that his application to the Nasik Court was for taking a step in aid of execution of the decree and that his Darkhast was within time under Article 182 (5) of the Indian Limitation Act of 1908. This plea was not accepted by the Courts below in dismissing the Darkhast as barred by limitation.

(2.) APART from authority, I have no difficulty in holding that the decree-holder's application to the Nasik Court fell within the scope of Article 182 (5) of the Indian Limitation Act of 1908. Article 182 (5) provided a period of three years from an application for execution of a decree 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". The decree-holder's application was in accordance with law and was made to the proper Court. The only disputed question is whether the application was for taking some step in aid of execution of the decree. A reference may be made in this connection to Order 21 Rule 6 of the Civil Procedure Code which lays down that a court which sends its decree for execution to another Court shall send a copy of the decree and certain certificates as specified in that rule. The provisions of the Rules 6 and 7 of Order 21 show that in the normal course of the transferee Court proceeds to execute the decree "without any further proof of the decree". A proper execution of the decree by the transferee Court is likely to be difficult if the copy of the decree sent by the Court which passed it contains material errors such as errors in the name of the judgment-debtor, the amount to be recovered under the decree or the description of any property affected by the decree. When the decree-holder in the present case applied to the Nasik court and prayed that the copy of the decree sent by the Nasik Court to the Sinnar Court should be rectified so as to give the correct name of the third judgment-debtor, he was asking the Nasik Court to take a step which was clearly in furtherance of the execution of the decree. His application, therefore was "to take some step in aid of execution of the decree" and was covered by Article 182 (5) of the Indian Limitation Act, 1908.

(3.) IN coming to the contrary conclusion the Courts below raised the wrong question whether the decree-holder's application to the Nasik Court was itself a step in aid of execution and proceeded to answer that question by the teat whether it was necessary for the decree-holder to make such an application. In this connection, the learned Appellate Judge observed that there was no reason to suppose that execution of the decree could not have proceeded unless the mistakes in the certified copy of the decree were rectified and that in any case the decree-holder could have executed the decree against two of the judgment debtors even if it could not be executed against the third judgment-debtor on account of the mistake which had occurred in his name in the copy of the decree. The learned Appellate Judge, therefore held that the decree-holder's application to the Nasik Court was "unnecessary and redundant", and that the application "could not serve as a step in aid of execution".