MAHARAJA OF BOBBLI Vs. SREE RAJA NARASARAJU

JUDGEMENT

(1.) The question is whether the plaintiff s application is barred by limitation. The plaintiff obtained a decree in O.S. No. 11 of 1903, on the file of the District Court of Vizagapatam. The decree was transferred to the District Munsiff s Court of Parvatipur for execution on the 3rd of October 1904. The decree-holder got certain immoveable properties attachedb ut the petition was dismissed on the 10th of March 1905 and no further steps were taken in the District Munsif s Court. The decree-holder then applied to the District Court at Vizagapatam on the 13th December 1907 for the sale of property attached by the District Munsif. The petition was returned for amendment under Section 235 of the Code of Civil Procedure of 1882. It was re- presented without amendment and was then recorded without being registered. The decree- holder makes this present application on the 21st April 1910 for notice and for the realization of the amount by sale of the properties already attached. The question whether the last application is barred by limitation depends upon the question whether the application of the 13th December 1907 to the District Court was in accordance with law and to the proper Court.

(2.) The application of the 13th of December 1907 prayed for notice under Section 248 of the Civil Procedure Code of 1882 and the decision of the District Judge that such application must be treated as a step-in-aid of execution is in accordance with the decision in Pachi-appa Achari v. Poojali Seenen (1905) I.L.R. 28 M. 557.

(3.) The only question that remains therefore for decision is whether the application is mads to the proper court. The District Judge decides that the proper Court to which the application should have been made was the District Munsif s Court of Parvatipur to which the decree had been transferred for execution and that therefore the present application is barred. under Section 223 of the Cvil Procedure Code of 1882 (Section 38 of the present Code) the Munsif s Court cf Parvatipur to which the decree was sent for execution has to certify to the District Court of Vizagapatam the fact of such execution or if the Munsif s Court fails to execute the decree the circumstances attending such failure. Till that is done the Munsif s Court retains its jurisdiction to execute the decree. See Abia Begam v. Muzafar Husain Khan (1897) I.L.R. 20 A. 129. There is no doubt therefore that the Munsif s Court had jurisdiction to entertain a similar application for execution in 1905. This was not denied in argument before us.