CHIKKA VEERAPPA SETTI Vs. SARKARU MUNISWAMI ACHARI

JUDGEMENT

(1.) The question for consideration in this appeal is whether an execution petition filed on the 22nd November, 1926, was barred by limitation. The executing Court found it barred; the lower appellate Court found it not barred and Pakenham Walsh, J., in Second Appeal found that it was barred.

(2.) Briefly the facts are as follows: - The decree-holder in O.S. No. 434 of 1919 in the District Munsif's Court Madanapallee, put in an execution application on 20 August, 1923, for the transfer of the decree to the District Munsif's Court of Chittoor for execution. Defendants 3 and 6 contested the application saying that the decree was fully satisfied. Transfer of the decree for execution was eventually ordered on 7 December, 1923. The execution petition of the 22nd November, 1926, was admittedly barred unless something had been done subsequent to the date of the application of 20 August, 1923 which saved limitation. The article of the Limitation Act in question is Art. 182 (5) and the appellant in the lower appellate Court and the second appellate Court contended that he had taken a step-in-aid of execution of the decree within three years before the filing of the execution petition on the 22nd November, 1926. Three steps were relied upon. The first was a batta application, Ex. B, put in on 27 November, 1923, the second was a vakalath put in in the appeal preferred by the judgment-debtors against the transmission of the decree, and the third was an affidavit, Ex. C. The plaintiff had been ordered to produce his accounts and in Ex. C stated that he had not those accounts in his possession, and in paragraph 3 of Ex. C stated "as prayed for in the petition, orders are necessary for taking out execution." Pakenham Walsh, J., took the view that none of these steps were steps-in-aid of execution of the decree.

(3.) I will proceed to consider the first step relied upon which is also the first in order of date. The batta application (Ex. B) was one made under Order16, Rule 1, Civil Procedure Code, asking the Court to summon persons to attend and give evidence. It is common ground that these witnesses were required by the appellant for the purpose of showing that the judgment- debtors objection that the decree had been satisfied was untrue. The appellant's contention is that this objection or obstruction to execution by the judgment-debtors had to be removed before the decree could be executed and that, by presenting the batta application to the Court, he was asking the Court to do something which would help to remove the obstruction to execution and allow execution to go on and that the batta application therefore was a step- in-aid of execution. It is admitted by the respondents that there are no decisions of the Madras High Court in which an exactly similar state of facts has been considered. On the other hand, there are nine decisions of other High Courts all of them directly bearing on this point, and in all of which it has been held that this and similar steps were steps-in-aid of execution of the decree within the terms of Art. 182(5) of the Indian Limitation Act. I propose, first of all, to deal with these decisions. The first of these is Kedar V/s. Lakhi (1917) 26 C.L.J. 115. There, an application for execution of a decree for possession of certain property had been made and the judgment-debtor filed an objection which rendered it necessary to ascertain the standard of measurement and for that purpose the decree-holder applied for summons upon his witnesses. It was held that the application made by the decree-holder for summoning witnesses was an act in furtherance of his application for execution and was, therefore, a step- in-aid of execution within the meaning of Art. 182(5) of Schedule I of the Indian Limitation Act. The next is Brojendra Kishore Roy Chowdhury V/s. Dil Mahmud Sarkar (1918) 22 C.W.N. 1027. There, in execution proceedings the judgment-debtor put in an objection and the Court ordered the parties to adduce evidence in support of their respective cases. The decree-holder filed a list of witnesses and stated that he was ready to proceed with his case and it was held that this implied an application to the Court to take the evidence which he was prepared to adduce to repel the objection taken by the judgment-debtor and in effect was an application to the Court to take some steps-in-aid of execution. In Hatimulla V/s. Sukhamoy Chauduri A.I.R. 1930 Cal. 304 it was held that, where a judgment-debtor presented a petition saying that there was an adjustment of the decree and the decree-holder attended Court with witnesses to contest that case, this act on the part of the decree-holder should be taken to be an application to the Court to take a step-in-aid of execution. In Ram Lakhan Singh V/s. Lala Mewa Lal A.I.R. 1922 All. 433 the facts were slightly different. There, execution proceedings were consigned to the record-room by an order passed behind the back of the decree-holder without any default on his part and without any decision : and it was held that a further application made by the decree-holder was really a continuance of the older application and came within Art. 182(5). In Abdul Quddus V/s. Sayed Ahmad Husain A.I.R. 1923 All. 415, which is directly in point, it was held that, where in execution of a simple money decree a certain property was attached and objection was preferred by the judgment-debtor and the decree-holder put in his application to summon witnesses in reply to the objection, this application for summoning witnesses was a step-in-aid. In Umar Din V/s. Ghulam Muhammad A.I.R. 1927 Lah. 653 it was held that an application by the decree-holder to summon witnesses to resist an objection by the judgment-debtor was a step-in-aid. In Ram Chand v. Dyal Singh A.I.R. 1929 Lah. 335 there was an application by the decree-holder to get rid of the objections raised by the judgment-debtor and an application for extension of time in complying with the orders of the Court and it was held that these were steps-in-aid of execution. In Sheo Sahay V/s. Jamuna Prasad Singh (1924) I.L.R. 4 Pat. 202, where the facts were similar to those here, in the judgment of the Court it is stated: There can hardly be any doubt that the decree-holders are entitled to regard any step taken by them to remove the obstacle thrown by the judgment-debtor in their way to the realization of their decree as a step-in-aid of execution.