SHESHAIYER RAJAMANNER AIYER Vs. MADANMOHAN PATNAIK

JUDGEMENT

(1.) This is an appeal by the decree-holder against the decision of the Subordinate Judge of Cuttack dismissing his application for the execution of a decree on the ground that it is not capable of execution. It appears that the decree in question was passed by the Munsif of Berhampur on 16 February 1922. Subsequently it was transferred to the Subordinate Judge of Cuttack for execution and some property belonging to the judgment-debtor was sold and purchased by the appellant.

(2.) On 18 February 1925, the appellant applied for delivery of possession and possession was delivered to him. On 31 October 1924, the execution case was dismissed on part satisfaction and it appears that an intimation of this fact was sent to the Court at Berhampur on 3 November 1924. On 31 October 1927, the appellant made another application for execution to the Subordinate Judge of Cuttack, but his application was returned to him by the learned Subordinate Judge who was of the opinion that it could not be executed without there being a fresh certificate of transfer from the Court at Berhampur. The appellant accordingly applied at Berhampur on 10 December 1927, for the transmission of the decree but this application was dismissed for default. On 7 July 1928, he filed a fresh application at Berhampur for the transfer of the decree which was granted. The decree was received by the District Judge of Cuttack on 4 December 1928, and was sent by him to the Subordinate Judge of Cuttack for execution. On 16 April 1929, the present application was filed by the decree-holder.

(3.) The view taken by the learned Subordinate Judge is that as the first application for execution was disposed of on 31 October 1924, and the subsequent application for transfer was made on 10 December 1927, the execution is barred and the decree cannot be executed. The appellant tried to save limitation by contending before the learned Subordinate Judge that his application for delivery of possession made on 18 February 1925, was a step-in-aid of execution. This contention was however overruled on the ground that it had been definitely decided by this Court in Triloke Nath Jha V/s. Bansman Jha A.I.R. 1923 Pat. 22 that an application for delivery of possession by the decree-holder auction- purchaser is not a step-in-aid of execution.