GOPAL TEWARI Vs. RAMDHARI PANDEY

JUDGEMENT

(1.) This rule is directed against the order of the Subordinate Judge of Chapra (First Court) dealing with an application under Section 47, Civil P.C., the learned Judge coming to the conclusion that the application for execution was barred by limitation. There is one application which was admittedly within time, and that was dated 14 August 1933. An application prior to that was dated 24 July 1933. Limitation would be saved if it could be shown that the application of 24 July 1933, was a step in aid of execution.

(2.) The argument advanced on behalf of the petitioner is that an application for transfer made on 5 July 1933, was also a step-in-aid of execution and that, in any event therefore the execution was not barred by limitation. But it seems to me that the authorities are quite dear with the exception of one on this matter, that an application for transfer is not a step-in aid of execution. I refer more particularly to the decision of their Lordships of the Privy Council in Banku Behari V/s. Naraindas Dutt 1927 PC 73. Lord Phillimore in delivering the opinion of their Lordships has pointed out that the application for transfer was a mere ministerial act and that the practice which seems to have existed in the Calcutta High Court to issue notice to the judgment-debtor on such an application was not warranted by law, The learned Judges of the Allahabad High Court in Todar Mal V/s. Phola Kunwar (1913) 35 All 389, have come to an opposite conclusion, but no notice was taken of the judgment delivered by the same Court in the previous year in Khetpal V/s. Tikam Singh (1912) 34 All 396 holding the opposite view. But it is immaterial to come to any decision on that point, although my view quite clearly is that it is not a step-in-aid of execution more particularly having regard to the authorities I have quoted and the decision of this Court to the same effect.

(3.) The learned Judge in the Court below has held that the application of 24 July 1933, is not a step-in-aid of execution because it was an application under C. 21, Rule 16.