P M M VELLIAPPA CHETTIAR Vs. SNSUBRAHMANYAM CHETTY

JUDGEMENT

(1.) The appellants obtained a decree for money against the respondent in the Calcutta High Court. As the respondent was residing within the. jurisdiction of the Subordinate Judge s Court of Ramnad, the decree was transmitted on the 2nd September 1912 under the latter portion of Order XXI, Rule 5, to the District Court of Ramnad for execution. This latter Court sent the decree to the Subordinate Judge. An application for execution was made to him on the 22nd of April 1913 and certain properties were attached. While the application was pending in the Sub- Court, the respondent moved the District Court to call up the records from the Sub-Court on the ground that under Rule 161-A of the Civil Rules of Practice the proceedings taken in execution were void as they were instituted more than six months after the transmission of the decree by the Calcutta High Court. The District Judge upheld this contention and ordered "that the decree will be recalled from the Sub-Court and returned to the High Court of Calcutta." The present appeal has been presented against this order.

(2.) A. Krishnaswami Ayyar or the appellants.--My contentions are (1) that Rule 161(a) of the Civil Rules of Practice is ultra vires as it puts an arbitrary limit of time within which execution must be taken in the Court to which the decree is sent for execution. This rule is inconsistent with Civil Procedure Code. In such cases time is not of the essence of the rule. See Maxwell s Interpretation of Statutes, 5th edition, pages 598 and 599 (2). The period of six months must be counted from the time the decree is sent to the Subordinate Court by the District Court and in that view the present application is not barred as it was made within six months from that date (3). The District Court had no power to recall the decree from the Subordinate Court.

(3.) A. Venkatarayalayya for the respondent.--The rule is not ultra vires as it was made under powers given to the High Court by the Civil Procedure Code. Being a rule of procedure the High Court is entitled to fix a time-limit within which execution should be taken in the Court to which the decree is transmitted. The Sub-Court is functus officio after the six months and further execution is a nullity. The rule clearly enacts that the six months period should be counted from the time the decree is first transmitted for execution and the District Judge had power to recall the case under Section 24, Clause (1)(6), Civil Procedure Code, in case execution is not taken out within the time fixed in Rule 161(a).