MURGEPPA MADIWALLAPPA Vs. BASAWANTRAO KHALILAPA

JUDGEMENT

(1.) THIS is a second appeal brought in execution proceedings, and the only question involved is the question of limitation. Admittedly the judgment-creditor s present application for execution is prima facie barred. He seeks, however, to support it by deducting the time which was occupied by him in getting from the Court a succession certificate to the original judgment creditor, and if that time is allowed to be deducted, then admittedly the application is within time. The whole question, therefore, is whether the deduction should or should not be allowed. The answer to the question depends upon the construction to be placed on Article 182, Clause 5, to the first Schedule of the Limitation Act. That clause gives a period of three years from the date of applying in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree.

(2.) IT is to be noted, in the first place, that the step in aid of execution is to be taken not by the applicant but by the Court. The clause means, as we read it, an application in accordance with law made to the proper Court asking that Court to do one of two things, that is either to execute or to take some step in aid of execution. Now, confessedly, this application to obtain the succession certificate was not an application to the Court to execute the decree. The only question, there- C fore, to be considered is whether it can be said to have been an application to the proper Court asking that Court to take some step in aid of execution of the decree. We are of opinion that that question must be answered in the negative. IT appears to us that an application to the Court to obtain a succession certificate is a perfectly independent thing, and although the ultimate object of it may be to use the certificate when obtained in order to further execution of the decree, nonetheless we think it impossible to say that the application to get the certificate is an application to the proper Court to take some step in aid. We think also that the occurrence of words proper Court also tends to support this conclusion. An application to obtain a succession certificate may be made in one of several Courts. Obviously it could not be such an application as Clause 5 contemplates, unless it were made to the proper Court which is defined as meaning the Court whose duty it is to execute the decree. If therefore Mr. Gokhale s arguments were sound, the question whether such an application would or would not save time, would depend upon the mere accident whether it was filed in the Court whose duty it was to execute the decree, or in some other Court. IT appears to us that it could not have been the intention of the Legislature that such a question as this should be decided on a mere accident of that sort. In our opinion the application to obtain the succession certificate was a mere preparation or preliminary, and cannot be said to have been an application asking the Court to take a step in aid of execution. We have not been referred to any case which appears to be in conflict with the view which we are taking unless it be the decision in Kunhi v. Seshagiri (1882) I.L.R. 5 Mad. 141. But we are so uncertain as to what was the state of facts upon which that decision was pronounced that we cannot regard the decision as adverse to our present opinion. On these grounds we come to the conclusion that this Darkhast cannot be saved by the deduction of the time occupied in getting the succession certificate. If that is so, then admittedly the Darkhast is time-barred. We, therefore, reverse the decree of the District Judge and order that the application be dismissed with costs throughout.