RANGACHARIAR Vs. PRSUBRAMANIA CHETTY

JUDGEMENT

(1.) The facts are that the respondent, decree-holder, filed an application for transfer of his decree and obtained an order for its transmission. He had not filed the copies required by Order XXI, Rule 6 and when he filed them on a sub sequent date, he also again applied orally for the transmission of the decree. The question is whether this oral application was one to take a step in aid of execution and time can be calculated from it.

(2.) The lower Appellate Court held that it could. But, in my opinion, it misapprehended the circumstances and the authorities relied on. The material fact is that the transmission of the decree had been ordered and that order was not the less the only order, which was necessary, because the decree holder had for his own convenience been allowed to postpone filing the necessary papers, We have not been shown that any further application by him was necessary; in fact for all that appears, on his filing the papers that decree would have been transmitted. In these circumstances the facts differ from those in Visiaraghavulu Naidu v. Srinivasalu Naidu 28 M. 399 where the proclamations would not have been issued, if the batta memorandum then in question had not been filed and resemble rather those in Masilamani Mudaliar v. Sethuswami Aiyar 41 Ind. Cas. 701 : 41 M. 251 : (1917) M.W.N. 502 : 33 M.L.J. 219 : 22 M.L.T. 115 where "a mere repetition of a prior application" was in question, the only difference between the last mentioned and the present case being that in the latter the Court had passed its order. It is material that the starting point under Article 182, Schedule 1 to the Limitation Act is not the taking of a step-in-aid of execution but the application to take such a step and there was in the present case no such application as the decree-holder can rely on. The lower Appellate Court s decision must, in these circumstances, be set aside, the appeal being allowed and the order of the District Munsif being restored with costs throughout. Seshagiri Aitar, J.

(3.) I agree with my learned brother; but, however, as a decision to which I was a party has been quoted in support of the respondent s contention, I wish to add a few words. The fasts are clear. An application to transmit a decree for execution which is now recognised as a step in aid of execution was made; before the record was completed an order was passed on it directing the transmission. This was on the 27th March 1911. On the 6th of July 1911, a paper which ought to have been filed before the order was passed was presented by the Vakil and he made an oral application to transmit the decree. I regard this merely as a request to expedite the transmission of the decree which was already ordered; Mr. Somaya contended that this was an application to take a step-in-aid. The application for that purpose was operated upon and an order had been passed, subject to the records being completed. The request by the Yakil was not a process which was necessary to effectuate the application. The mere filing of the paper by itself, cannot be a step; because, what the Limitation Act wants is an application to take a step. Therefore, as the remedy was superfluous and as the filing of the paper by itself was of no avail, this case comes within the principle enunciated in Masilamani Mudaliar v. Sethuswami Aiyar 41 Ind. Cas. 701 : 41 M. 251 : (1917) M.W.N. 502 : 33 M.L.J. 219 : 22 M.L.T. 115.