BALAGURUSWAMI NAICKEN Vs. GURUSWAMI NAICKEN

JUDGEMENT

(1.) The question involved in this appeal is whether the execution of the mortgage decree in favour of the plaintiffs is barred by limitation. The Subordinate Judge held that the application for execution presented by the plaintiffs is not barred by limitation and the defendant has preferred this appeal.

(2.) The mortgage decree in favour of the plaintiffs was passed on 14th September, 1916. An execution application was filed on 25 September, 1917. It was dismissed on 17 October, 1918. The present application is dated 9 March, 1923. The contention of the plaintiffs is that a certain sum of money in Court was paid out to them by order dated 31 March, 1920 and the cheque was actually issued on 1 April, 1920 and that their application is therefore within three years from the date of the order for payment out. On the other hand Mr. Subramania Aiyar for the appellant contends that the application for payment out of the sum of money in Court is not a step-in-aid of execution and therefore plaintiffs application for execution is barred. The defendant's guardian obtained leave of the Court for mortgaging the defendant's property for the purpose of raising money to pay off the plaintiffs debt. Sanction was given to the guardian to raise money in 1917 and on 14 October, 1918 he hypothecated the defendant's properties to one Kasturi Naicker by Ex. I. The recital in Ex. I is : " Particulars of receipt of the said amount Rs. 17,690 is the amount received by way of direction given (to you) for settling and discharging the sum (payable) under the decree obtained against the said minor by Appanaickenpettai K. Guruswami Naicken and others in O.S. N0.64 of 1915 on the file of the said Sub-Court and for obtaining receipt and retaining it as a title-deed herefor." The mortgagee seems to have paid the amount into Court on 19 March, 1920 whereupon the plaintiffs applied for an order for payment out.

(3.) The question is whether in the circumstances an application for an order for payment out by the Court is a step-in-aid of execution. It is well settled that an application for payment out of money in Court by a decree-holder is a step-in-aid of execution if the money in Court was realised in execution of the decree. Venkatarayulu V/s. Narasimha ILR 2 M 174, Kerala Varma Valiya Rajah v. Shangaram (1892) ILR 16 M 452, Koomayya V/s. Krishnamma Naidu (1893) ILR 17 M 165 : 3 MLJ 296 and Begunchand V/s. Mugat Rao (1896) ILR 22 B 340. In this case the money in Court was not realised by the execution of the plaintiffs decree. The plaintiffs execution petition was dismissed so far back as 17 October, 1918. The money was paid into Court to the credit of the suit and the plaintiffs applied for payment to them of the amount in Court. Where an amount of money is in Court to the credit of a suit and such amount has not been the proceeds of execution an application for payment out cannot be said to be an execution application or an application in aid of execution. In such a case the plaintiff has to only apply to the Court for payment and the Court makes the payment without reference to the judgment-debtor in the suit. By asking for payment of the amount in Court, the plaintiff does not do anything to aid the execution of the decree. Where money is realised in execution of the decree he has to ask the Court for an order to pay the money to him, and the Court, after considering whether there are other claimants in respect of the amount, passes an order in favour of the applicant. Such an order is a step-in-aid of execution. But, where the money is to the credit of the suit and all that is required of the plaintiff is to make an application for payment, it cannot be said that what he does is a step-in-aid of the execution of the decree.