MARUTI BANSI TELI Vs. G. V. NANJAPPA CHETTY

JUDGEMENT

(1.) THIS is a Letters Patent Appeal against the decision of Niyogi, J. The appeal arises out of execution proceedings. The decree-holder obtained a decree in the Court of the District Munsif, Coimbatore, and on the application of the decree-holder that Court transferred the decree on 11th November 1930 to the Court of the Subordinate Judge of Malkapur for execution there. Three years later, on 11th November 1933, the decree-holder, who had done no thin in the meanwhile, applied to the Coimbatore Court with a prayer that the Court should send for the decree from the Malkapur Court and then send it back again for execution there. The question is whether this application saves limitation. Clause (5) of Article 182, Limitation Act, admittedly applies, so the question is whether this application to the Coimbatore Court was an application made to the "proper Court" to take "some step-in-aid of execution of the decree." In Vishwanathsingh v. Mahabir Prasad A.I.R. 1937 Nag. 305 it was held that a Court which passes a decree does not lose its power to execute the decree after it transfers the decree to another Court for execution. The same point was raised in that case as has been raised here (but was not decided. Their Lordships stated: The application was to transfer the decree not to a third Court but to the same Court to which it had already been transferred. It was accordingly, even if granted, a perfectly useless step, and it is a matter for consideration whether such a step is a "step-in-aid" seeing that, if granted, it does not aid. . It is however desirable to warn litigants against wasting the time of Contracts by useless applications (that is, applications which if granted do nothing) merely to mark time and save limitation.

(2.) IN accordance with the decision in Vishwanathsingh v. Mahabir Prasad A.I.R. 1937 Nag. 305 we hold that the application was an application made to the proper Court, but it was an application that, in our opinion, took the decree-holder no nearer execution. Apart from the question of saving limitation the decree-holder would clearly have remained in the same position after the application had been granted. If the application was a step-in-aid of execution it would, under Clause (5) of Article 182, save limitation; but it would not become a step-in-aid of execution merely because the decree-holder made the application in the hope of saving limitation. Niyogi, J. relied apparently on the decision in Kanti Narain v. Madan Gopal A.I.R. 1935 Lah. 465. In that case a decree was passed by a Court in Lahore and the decree was transferred for execution to a Court in Multan. Subsequently, the decree-holder applied to the Court at Lahore (a) to execute the decree, (b) to transfer it to a Court at Amritsar for execution and (c) to transfer it for execution to the Court at Multan to which it had already been transferred. Most of the argument turned on the question whether the application in the Lahore Court was an application to a proper Court. It was held that the Lahore Court had jurisdiction to entertain the application, which is the view adopted in Vishwanathsingh v. Mahabir Prasad A.I.R. 1937 Nag. 305 and it seems clear that the application for execution in the Lahore Court as well as for transfer of the decree for execution at Amritsar was necessarily a step-in-aid of execution. We do not find in that decision any discussion of the question whether an application for transferring a decree to a Court to which it had already been transferred is a step-in-aid of execution. In our opinion, the recalling of the decree from Malkapur and the sending of it back there again would, in no way, assist the execution and would therefore not be a step-in-aid of execution. It would therefore not save limitation under Clause (5) of Article 182. The appeal is therefore allowed with costs and the, application of the decree-holder for execution is dismissed as barred by limitation. Costs throughout will be paid by the decree-holder.