FIRM RAMNARAYAN-JAGANNATH Vs. RADHAGOVINDA DEBNATH

JUDGEMENT

(1.) This appeal is directed against the order of the learned District Judge of Bakergunj, dated 28 February 1939, in which he held that a certain application for execution was time-barred. The decree-holder is the appellant in this case and he was seeking to execute a decree which he had obtained in the Presidency Small Cause Court on 23 July 1926. It appears that an application for the execution of this decree, which the decree-holder had filed on 16 July 1929 was dismissed for default on 30 September 1929. Thereafter, the record shows that the decree was sent on three occasions to the Court of th6 Munsif of Bhola for execution, viz., on 13 December 1929, 5 December 1932 and 4 December 1935, but on each occasion the decree appears to have been returned unexecuted. The application for execution with which we are now concerned was filed on 23 July 1938, and it is contended on behalf of the judgment-debtor that this application must be treated as time-barred as it was not filed within three years of the final order in the preceding execution case, which was passed on 30th September 1929. In this connexion, it is argued that the subsequent proceedings under which the decree was transmitted to the Court of the Munsif of Bhola for execution cannot be regarded as steps in aid of execution. The last of the orders under which the decree appears to have been transmitted to Bhola for execution is dated 4 December 1935; and it is clear that, if this order can be regarded as an order in connexion with an application to take some step-in-aid of execution within the meaning of Art. 182(5), Limitation Act, the application for execution which was filed on 23 July 1938, will not be time-barred.

(2.) In the first place, it is argued that these orders transferring the decree to the Bhola Court for execution should not be regarded as steps-in-aid of execution because, on the material dates, no execution case was actually pending. In support of this argument reliance is placed upon some observations of C.C. Ghose J. in Amar Krishna V/s. Jagatbandhu Biswas . In that case the learned Judge observed that to take some step-in-aid of execution must mean some proceeding to obtain an order of the Court in furtherance of the execution of the decree it must be remembered that a step-in-aid of execution can only be taken in the course of an execution proceeding which is pending or capable of being kept alive and there can be no step-in-aid of execution where the execution itself is already barred.

(3.) In the case with which we are now dealing it seems to be clear that the orders for the transfer of the decree to the Munsif's Court of Bhola, which were made on 13 December 1929, 20 December 1932, and 4 December 1935, must have been made in the ordinary course of business in pursuance of applications which were filed under Section 31, Presidency Small Cause Courts Act. Further, there is no doubt that, at the time when these orders were passed, the decree which it was sought to execute was still capable of being kept alive although no application for execution may have been pending at the time. The provisions of Art. 182(5), Limitation Act, show that, in order to save limitation in the case of the execution of a decree passed by a Court subordinate to this Court, an application for execution must be filed within three years of the final order made either in connexion with a previous, application for execution made in accordance with law, or within a similar period of the final order passed on an application to take some step in aid of execution. In my view, the law clearly contemplates that, if a decree is legally capable of being executed, a decree-holder may either apply for its execution by filing an application under Order 21, Rule 11, Civil P.C., or apply for some step to be taken in furtherance of any execution proceedings which he may thereafter think it necessary to initiate, and in the latter case, it is not necessary that an application for execution should actually be pending at the time when he files his application. For instance, the decree-holder would adopt a perfectly valid procedure if he applied in a suitable case to the Court which passed the decree for the transmission of the decree to another Court for execution and, after this transfer had been effected, applied to the transferee Court for the execution of the decree : Srinath Chakrabarti V/s. Priyanath .