LAWS(PVC)-1934-1-60

GOPAL SHANKAR JAHAGIRDAR Vs. RAISING PREMJI GOTIVALA

Decided On January 10, 1934
GOPAL SHANKAR JAHAGIRDAR Appellant
V/S
RAISING PREMJI GOTIVALA Respondents

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a decision of Mr. Justice Barlee. The point involved is one of limitation and the necessary facts and dates are these. On July 3, 1916, the respondent obtained a money decree against Shankar, the father of the appellant, in the Court of the First Class Subordinate Judge at Poona. Then on November 3, 1917, Shankar died. On March 26, 1919, the decree-holder made an application (No. 49 of 1919) under Section 39 of the Civil Procedure Code for transfer of the decree for execution to the Dhulia Court. This application was made in ignorance of the death of the judgment-debtor. Notice was issued and the bailiff then reported that Shankar was dead. On July 21, 1919, an oral application was made by the judgment-creditor's pleader for time to make enquiries as to the legal representatives of the deceased judgment-debtor. The application was granted and time was given for this purpose until August 15, 1919, but on that day the application was dismissed, the applicant not having taken any steps in connection with his application. On July 13, 1922, an execution application was made against the appellant, i.e., the son of Shankar. This application was struck off as no steps were taken to serve the notice. On June 26, 1925, there was another execution application which was struck off for the same reason. As the notices were not served the question of limitation did not arise at this stage.

(2.) On March 17, 1926, the application which has given rise to this appeal was made. This was another application under Section 39 of the Code for transfer of the decree to Dhulia. The question for determination is whether, as contended by the appellant, the execution of the decree is time barred. The relevant provision of the Indian Limitation Act is Art. 182 as it stood before the amendment in 1926. That Art. provides a period of three years for an application for the execution of a decree, the period to be counted from the dates given in the 3 column of the Article. Clause 5 at the material time provided that time was to be counted 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".

(3.) Now it is conceded, and is obvious from the dates which I have given, that the execution of this decree of July 3, 1916, must have been barred at the date of the latest application on March 17, 1926, unless each of the first two applications (i.e., the application of March 26, 1919, and that of July 21, 1919) can be held to be either a valid application for execution or a valid application to take some step-in- aid of execution. The trial Court held that the first application was good inasmuch as it was filed owing to a bona fide error of the plaintiff who believed that the judgment-debtor was alive. For that proposition reference was made to a passage in Rustomji's Law of Limitation but no case was cited. It was held further that the second application was a valid step-in-aid of execution on the strength of the decision in Haridas Nanabhai V/s. Vithaldas Kisandas (1912) I.L.R. 36 Bom. 638 In that case it was held that an application for time to enable the applicant to obtain copies of the decree and judgment, made after presenting a darkhast to execute a decree, is a step-in-aid of execution. The Court followed Kunhi V/s. Seshagiri (1882) I.L.R. 5 Mad. 141, where the point decided was that an application by a judgment- creditor to the Court which passed the decree for a certificate that a copy of a revenue register of the land is necessary, to enable him to obtain such copy from the Collector's office and thereupon to execute the decree by attaching the land, is a step-in-aid of execution within the meaning of the corresponding provision of the Indian Limitation Act of 1877. The learned trial Judge, therefore, allowed the application holding that the decree was not time-barred.