KRISHNA DAS Vs. KRISHNA BAGERIA

JUDGEMENT

(1.) This is a second appeal by the decree-holders. The facts giving rise to the appeal are. the following. The appellants obtained a money decree against the respondents in the Court of the City Subordinate Judge, Laskar Gwalior. This was on 9-11-1943. On 14-11-1945, the appellants made an application in the Court of the City Subordinate Judge for a transfer of the decree to Hazaribagh. Gwalior in those days was part of what was called a Native State. There. was no reciprocity of execution of decrees between a Court in a Native State and the Courts in British India in the absence of a notification issued under Section 44, Civil P. C. The City Subordinate Judge of Gwalior directed the appellants to produce any notification establishing reciprocity under Section 44, Civil P. C. No such notification was produced, and the execution case was dismissed" on 22-2-1947. On 8-4-1949, a second execution application was made. This application was also dismissed on 31st May 1949, for reasons which need not be stated here. On 8th February 1950, after the coming into force of the Constitution of India which amended the Code of Civil Procedure and permitted execution of decrees passed by Courts in areas which were formerly called Native States by Courts in India, a third application was made for a transfer of the decree to Hazaribagh. On such transfer, the decree came to the Court of the Subordinate Judge, Hazaribagh, where the Judgment-debtors appeared and pleaded the bar of limitation. The relevant question for consideration was if the first application made on 14-11-1945 was an application in accordance with law to the proper Court for execution, or a step in aid of execution within the meaning of Clause (5) of Article 182, Limitation Act; for, if the first application made on 14-11-1945 was not an application in accordance with law to the proper court or a step-in-aid of execution, then the second and the third applications were clearly barred by time. The learned Subordinate Judge of Hazaribagh and the learned District Judge on appeal concurrently held that the application made on 14-11-1945 was not an application in accordance with law to the proper Court, or a step in aid of execution within the meaning of Clause (5) of Article 182, Limitation Act. On that finding, they held that the decree was barred by time and Incapable of execution now.

(2.) In this second appeal learned Counsel for the appellant decree-holders has contended before me that the application made on 14-11-1945, was an application in accordance with law or, at least, it was a step in aid of execution. It is pointed out by learned Counsel for the appellants that the application made on 14-11-1945 contained two prayers : one was for a transfer of the decree to Hazaribagh and the other for arrest of the judgment-debtors. It has been argued before me that even if the Gwalior Court had no power to trans-fer the decree to Hazaribagh at that time, yet the prayer which the appellants had made for arrest of the judgments-debtors would make the application a good application within the meaning of Clause (5) of Article 182, Limitation Act. The learned District judge on appeal correctly pointed out that though there was a prayer for the arrest of the . judgment-debtors, the application was in effect an application for a transfer of the decree to Hazaribagh. The application itself mentioned that the . judgment-debtors were not residents within the territorial jurisdiction of the Gwalior Court and it was. not stated that the judgment-debtors had submitted to the jurisdiction of the Gwalior Court. It is not disputed that at the relevant date the Court of the City Subordinate Judge, Laskar, had no authority to pass an order transferring the decree to a Court in British India. The words "in accordance with law" in Article 182(5), Limitation Act, have been explained in more than one decision of this Court. I need only refer to the decision in -- 'Firm Johar Mal Paran Ram v. Bindeswari Prasad Singh', AIR 1937 Pat 522 (A), where it has been pointed out that, the expression "in accordance with law" occurring in Article 182(5) means applying to the Court to do something in execution which by law that Court is competent to do. and that it does not mean applying to the Court to do something which either to the decree-holder's direct knowledge in fact or from his presumed knowledge of the law, he must have known the Court was incompetent to do. It is clear to me that on the finding of the learned District Judge the application made to the Court of the City Subordinate Judge, Laskar, on 14-11-1945 was not an application in accord-ance with law, nor was it an application to the proper Court, because that Court had no power either to transfer the decree or to arrest the judgment-debtors who were not residents within the jurisdiction of the Court.

(3.) As to the argument that the application was a step-in-aid of execution, learned Counsel referred to the decision in -- 'Ramchandra v. Krishna Lal', AIR 1922 Pat 301 (B). That was a case in which it was held that an application for the issue of a notice under Order 21, Rule 22, Civil P. C., was a step in aid of execution; it was further held in that case that where the Court which passed a decree granted an application by the decree-holder under Section 39, praying that the decree be sent for execution to another Court but a copy of the decree was not in fact transmitted to the latter court, a further application for execution was within time if made to the first Court within three years from the date of the application for transfer. The distinction between the decision relied on by learned Counsel for the appellants and the present case is this : in the former case the application for a transfer of the decree was made to a proper Court, a court which could pass an order under Section 39. The application was, therefore, held to be a step in aid of execution even though the decree had not in fact been transmitted to the transferee Court. In. the case. before me, the Court of the City Subordinate Judge, Laskar, had no power to transfer the decree. As to the issue of a notice under Order 21, Rule 22, Civil P. C., the learned District Judge has pointed out that no such notice was actually issued, nor was there any order for the issue of such a notice.