P R SRINIVASA AIYANGAR Vs. SLNARAYANA RAO

JUDGEMENT

(1.) This appeal is from an order of Kumaraswami Sastry, J. granting an application to execute a decree for costs of the District Court of Mysore. The judgment debtor objected on the ground that it was barred by limitation. J he facts so far as they are relevant are that the original decree was dated June 19th, 1911, and that in 1912 and 1914 attempts were made to execute the decree through the Small Cause Court, Madras, which failed through want of jurisdiction of that court and ended in about April 1914 by the sending back of the papers in the case by the Small Cause Court to the District Court of Mysore. In December 1916 an application was made to the District Court of Mysore to transmit the decree to the Madras High Court which failed owing to there being an attachment on the decree. A further application of the same nature was made on March 15, 1918 which application was dismissed by the Mysore District Court on January 30, 1919 but granted on appeal by the Chief Court of Mysore on July 21, 1920.

(2.) In pursuance of that order, a certified copy of the decree has been transmitted to this Court, and the application in this case is for leave to execute that decree. The period of limitation in such cases is provided by Art. 182 Clause 5 of the Limitation Act of 1908 under which the time from which the period of limitation begins to run is the date of applying in accordance with law to the proper court for execution to take some steps in aid of the execution of the decree. It is common ground in this case that if the applications to the Mysore Court of 1916 and 1915 are steps in aid of execution, this application is in time, whereas, if they are not steps in aid of execution, this application is barred by limitation. The application of the 15 March, 1918 to the District Court and the subsequent appeal were attended and argued by both the parties and the point was then raised and fully argued that the application to transmit the papers with a view to obtaining execution by this Court is not a step in aid of the execution of the decree, and the Full Bench of the Chief Court of Mysore (vide Mysore Chief Court Reports Vol. 25, page 298) decided that it was according to the law of Mysore a step in aid of execution. The law of limitation contained in Clause 5, Art. 182 of the Mysore Act is identical with Clause 5, Art. 182 of the Indian Limitation Act. The difficulty arises owing to the fact that a converse case of the transmission of papers from this Court to a Native State for the purpose of obtaining the assistance of the Court of that Native State in executing a decree of a Court in this Presidency came before a Full Bench of this Court in Peirce Lesli V/s. Perumal (1917) I.L.R. 40 Mad. 1069 and it was there held that such a step was not a step in aid of execution. We therefore have the anomalous position that in interpreting statutes in identical terms, the Chief Court of Mysore has held that an application to transmit the papers in a Mysore case to this Court is a step in aid of execution, while this Court has held that the application to transmit the papers in a Madras case to Travancore is not a step in aid of execution. The question to be considered is according to that system of law, whether the step taken is or is not a step in aid of execution, and in my judgment of the law to be considered is that of the place where the application is made which will generally also be the place of origin of the decree and I think that Clause 5 of the Art. 182 of the Indian Limitation Act must be read to mean "to take some step which, according to the law of the place where the application therein referred to has to be made, is a step in aid of execution". It follows that it is the law of Mysore that has to be considered. By Section 13 of the Civil Procedure Code a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties. There has in this case been a Foreign judgment on this matter directly adjudicated upon between the same parties, namely that according to the law of Mysore this is a step in aid of execution and I think that under that section it is not open, whatever this Court might have said in such cases, to an unsuccessful party to the application in Mysore to contend here that the law of Mysore is otherwise. I should add that I do not agree with the contention addressed to us that the order applied for in Mysore was an application for the mere performance of a ministerial act, it was an application to the court in its Judicial capacity and the court's order was a judgment. Further apart from this section, there is in this case a decision to this effect by the highest court in Mysore. In my judgment the fact that a Full Bench of this Court holds that the law in British India is otherwise is not a sufficient ground for this Court to hold that the Chief Court of Mysore has interpreted the Mysore Statute wrongly although the Statutes are in identical terms. It follows that as the step is to be a step which according to the law of Mysore is a step in aid, in my judgment we are bound to hold that this application to transmit the papers here was a step in aid of the execution of the decree.

(3.) I desire to add this, that the question whether a similar application to transmit the papers would have been a step in aid if made in British India, in the view that I have expressed, does not arise for decision. If it did I should feel myself bound by the decision of the Full Bench of this Court in Peirce Leslie V/s. Perumal (1917) I.L.R. 40 Mad. 1069. I must however, not be taken to agree with that decision. It has been strongly disapproved of by a Divisional Bench in Janardan Govind V/s. Narayanakrishnaji (1918) I.L.R. 42 Bom. 420. The point has been argued before us and the inclination of my mind is to agree with the Bombay decision and not with that of the Full Bench of Madras, and if the same point arises again, I should wish to have it reconsidered by a Full Bench. For the reasons given above the appeal must be dismissed with costs. Wallace, J.