RAMESHWAR LAL JHUNJHUNWALLA Vs. TRILOKE CHAND

JUDGEMENT

(1.) The question for determination in this appeal is whether the execution of a decree is barred by limitation. The decree under execution is a money decree passed by the second Munsif's Court, Bhagalpur, on 15 May 1935. On 1 June 1936 it was transferred for execution to the Munsif's Court at Madhi-pura. In the latter Court an application for execution (Execution case No. 574 of 1936) was filed on 30 July 1936. This execution case was dismissed on part satisfaction, on 13 March 1937. On 21 February 1940 the decree-holders filed a fresh application for execution (Execution case No. 145 of 1940) in the second Munsif's Court, Bhagalpur, praying for arrest of the judgment-debtor. This application was dismissed for default on 23 February 1940. On 9 January 1942 the decree- holders filed the present application for execution (Execution Case No. 12 of 1942) in the Munsif's Court at Madhipura after obtaining a new certificate of non- satisfaction from the Bhagalpur Court. The judgment-debtor filed an objection under Section 47, Civil P. C, on the ground that the application was barred by limitation. The learned Munsif held that the application for execution which was filed on 21 February 1940 in the Bhagalpur Court was not an application made to the proper Court, and, therefore, did not save limitation. He proceeded on the assumption that the Madhipura Court did not report the result of execution case No. 574 of 1936 to the Bhagalpur Court, as there was no note to that effect in the execution register. On appeal, the learned Additional District Judge took the same view. Accordingly, he dismissed the appeal. Hence this appeal by the decree- holders.

(2.) This appeal originally came up for hearing before Sinha J. who referred it to a Division Bench, because apparently he doubted the correctness of the decision in Kamakhya Narain Singh V/s. Kalipado Dutt A.I.R. 1939 Pat. 289 on which both the Courts below relied. Under Art. 182, Clause (5), Limitation Act, the three years period of limitation is to run from the date of the final order passed on an application made in accordance with law to the "proper Court" for execution, or to take some step in aid of execution. In Explanation 2 "proper Court" is defined to mean "the Court whose duty it is to execute the decree or order." Section 38, Civil P. C, provides "A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution." Section 89 lays down under what circumstances the Court which passed a decree may send it for execution to another Court. Section 41 says: The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

(3.) Order 21 Rule 6 lays down the procedure to be adopted by the Court sending a decree for execution to another Court. Order 21, Rule 10 provides: Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.