AWAPPA TATOBA CHAUGULE Vs. DATTO KRISHNA ADKE

JUDGEMENT

(1.) A mortgagee obtained a decree against his mortgagor under Section 15b of the Dekkhan Agriculturists' Relief Act. Rather less than three years thereafter he applied to have the decree made final, and rather more than three years after the existing decree had been passed he applied for execution of the decree. His application for making the decree final had been rejected on the ground that it was unnecessary, the existing decree being one under Section 15-B of the Dekkhan Agriculturists' Relief Act and therefore partaking of the nature of a final decree. The result was that the judgment-debtor objected to execution on the ground that the execution was out of time and was not saved by the decree-holder's application to have the decree made final, that not being an application to take a step in aid of execution made in accordance with law to the proper Court within the meaning of Article 182 (5) of the Indian Limitation Act. His contention was rejected by the executing Court and the judgment-debtor has come in appeal to this Court.

(2.) IN our opinion he must succeed in his appeal. We have heard a good deal of argument, and several authorities have been cited to us, as to the meaning of the words "application to take a step in aid of execution of the decree. " Without considering the authorities for the moment, and speaking for myself, I should say that in plain English those words would cover an application which was intended to facilitate the execution even of a decree which had yet to be passed. At any rate I am satisfied that in plain English they would cover an application for what was intended to be a step in aid of execution, even though in point of fact the application was unnecessary and on that account could not be regarded as being in fact of any assistance to execution. There are however other words in the article which appear to control the meaning of the words "application to take a step in aid of execution of the decree," and they are to be found in Explanation II and the provision that the application must be made to the proper Court. The combined effect, assuming that the application to take a step in aid of execution has to be made to the proper Court, is that the application to take a step in aid of execution has to be made to the executing Court, and that limits the application to the sort of application that can be entertained by an executing Court. An application to make a decree final could presumably be entertained only by the Court trying the suit. Such an application therefore cannot be an application to take a step in aid of execution within the meaning of Article 182 (5) unless it can be argued-as an attempt has been made in this case to argue-that the provision as to the application being made to the proper Court occurring in Article 182 (5) does not apply to applications to take a step in aid, but applies only to applications for actual execution.

(3.) IT was argued that the application being evidently bona fide, that was a point in favour of the decree-holder. But bona fide is immaterial for the purposes of Article 182 (5); see the decision of the Privy Council in Khalil-ur-Rahman Khan v. Collector of Etah (1933) L. R. 61 I. A. 62, s. c. 36 Bom. L. R. 273. IT would be material only if the case could be brought within Section 14 of the Indian Limitation Act. That it can be brought within Section 14 is the last argument addressed to us on behalf of the decree-holder. But unfortunately an application to make a decree final and an application for the execution of a decree are not applications for the same relief within the meaning of Section 14 (2 ). The section therefore cannot save limitation in this case.