KAPILDEO NARAIN Vs. SHEO PRASAD SINGH

JUDGEMENT

(1.) This is a miscellaneous second appeal at the instance of the judgment-debtors and the only point involved in it is as to whether the execution case filed in the transferee court on 8-5-1956 is barred by limitation. Only two more dates are necessary to be mentioned. On 7-5-1953 the court which passed the decree passed an order on the petition of the decree-holder for transfer of the decree to the transferee court, for the preparation of the transfer certificate. The certificate was actually prepared and signed on 8-5-1953.

(2.) It is conceded by Mr. Sinha, learned Advocate for the appellants, and, in my opinion, rightly that it is well settled now that the date of the final order passed on an application for transfer of the decree would give the fresh starting point for execution of the decree under Clause (5) of Article 182 of the Limitation Act. His contention, however, is that the final order was passed on 7-5-1953, and; therefore, the execution which was levied on 8-5-1956 in the transferee court is late by a day. The courts below have taken the view that the final order was passed on 8-5-1953 when the certificate was actually prepared and signed, and, therefore, the execution case is not barred by limitation. In my opinion, the decision of the courts below is correct and the contention of the learned Advocate is not sound. In the case of Hafiz Uddin v. Firm Parshadi Lal Manohar Lal, AIR 1935 All 757, it has been held that the order directing the office to prepare a certificate of transfer "cannot be considered to have finally disposed of the application which prayed that the certificate be transmitted." The certificate in that case was actually prepared and handed over to the decree-holder on the 8th March, 1930, although the order directing the preparation of the certificate had been passed on the 17th February, 1930. The latter date was taken to be the starting point under Article 182(5). This view finds support from a Bench decision of this Court in the case of Mahidhar Roy v. Kalyani Prasad Singh, AIR 1945 Pat 71. It is important to notice four dates in that decision, On 18th June, 1936, the transmission of the decree with a certificate of non-satisfaction was ordered. The certificate of non-satisfaction was prepared on the 25th Juno, 1936. The papers were received by the transferee court on the 4th July, 1936, and apparently the final order was passed on 6th July, 1936, by the transferor court. It was held in that case that the starting point of limitation was 25th June, 1936, and the execution case, which was filed three years beyond that was held to be barred by limitation. Mr. Sinha has endeavoured to distinguish this case on two grounds. His first submission is that the argument of Mr. P.R. Das in that case was that even if 25th June, 1936, was taken to be the date of the final order, the execution case was barred by limitation and 6th July, 1936, could not be taken to be the date of final order as was contended on behalf of the decree-holder. There was no question as to whether 18th June, 1936, or 25th June, 1936, should have been taken as the date of the final order. There is some force in this argument. But on reading this decision as a whole, it appears to me that there was no argument and no decision that 18th June, 1936, was to be taken as the date of the final order. In absence of any other decision taking a contrary view, I read this decision to hold that 25th June, 1936, was the starting point in that case. If that be so, the view taken by the court below in the present case is well supported by authorities. Mr. Sinha further submitted that this case of Mahidhar Roy has been dissented from in another later Division Bench case of Sheonath Prasad v. Bindeshwari Prasad, AIR 1950 Pat 518, and there it has been held that the date of the final order is the date when the order for transfer is made. Some observations in Mahidhar Roy's case, AIR 1945 Pat 71, have been dissented from and those observations as they have been quoted in the latter case were that the application for transmission "was not by itself a revival of the decree within the meaning of the Act inasmuch as it was a mere ministerial act of an officer of the court and not the judicial act of a Judge". If I may also observe with very great respect that there were numerous authorities which had taken the view that a final order passed on an application for transfer gives a fresh starting point of limitation under Clause (5) of Article 182 of the Limitation Act, yet the observations just quoted in Mahidhar Roy's case had been made with reference to a Full Bench decision of the Calcutta High Court and a decision of the Judicial Committee of the Privy Council which were in connection with the interpretation of Article 183 of the Limitation Act and not Article 182(5). Nowhere in Sheonath's case it has been pointed out that the decision of Manohar Lall J. in Mahidhar Roy's case that the final order was passed on 25th June, 1936, was also not correct. It is no doubt true that in Sheonath's case the facts stated there only show that the decree was transferred for execution by order dated 17th January, 1946, and the execution was started in the transferee court on the 31st January, 1947. But that does not mean that 17th January, 1946, must be taken to be the date on which simply the order was passed and not the certificate was prepared and signed. This question did not fall to be considered in Sheonath's case at all as the execution, which was started in the transferee court, was well within three years of the 17th January, 1946, even assuming that that was the date of the order and not the date of the preparation and signing of the certificate.

(3.) If I may express my reasons also for taking a view on the lines of the Allahabad case and the case of Mahidhar Roy, it would be noticed that under Order 21, Rule 6 of the Code of Civil Procedure such a certificate has got to be sent. The order which is first passed on an application for transfer is not the final order. It is an order directing the office to prepare the certificate case. The application before the transferor court is not finally disposed of unless the certificate is prepared and signed and the order which gives the starting point under Clause (5) is not any order on the application for step-in-aid of execution but it is the final order. It this view is not taken, anamolous results would be brought about. I may test this proposition of law by taking an extreme example. Let us assume that the court which passed the decree passes an order for the preparation of a certificate for transfer, say, on the 2nd January, 1959. The certificate is actually prepared by the office, say, by 23rd December, 1962. The execution is then levied in the transferee court in the year 1963, It would be obviously barred by limitation it ,the contention of Mr. Sinha is accepted because the final order in this case would be 2nd January, 1959, and the execution started in the transferee court in the year 1963 would be barred by limitation for no fault of the decree-holder and that seems to be the reason behind the decision of the Allahabad High Court, with which, as I have already stated, I respectfully agree, In the result, the appeal fails and is dismissed with costs, but, on the facts and in the circumstances of the case there will be no order as to costs.