SHEO PRASAD Vs. MTNARAINI BAI

JUDGEMENT

(1.) Lala Sheo Prasad, appellant here, obtained a simple money decree against Isri Prasad, husband of Mt. Narainibai, respondent here, in the Court of the Munsif of East Budaun on 9 March 1916. On 12 November 1918 he applied for execution. On 23 January 1920 this application was struck off with the consent of the decree-holder. On 4 March 1921 he applied again for execution to the Munsif of East Budaun. The relief asked for in that application was that certain property be attached and brought to sale. There was a furtherreference to the heirs of the deceased judgment-debtor, but it is admitted now on behalf of the respondent that there had been a previous application to bring the heirs on the record and that the reference to these heirs in the application of 4 March 1921 can have no bearing on the matter which we have to decide. This matter need not therefore be further referred to, and the application of 14 March, 1921 will be considered as being simply one for the attachment and sale of certain property. On 19 April 1921 if not before, the attention of the decree-holder was drawn to the fact that all the property, for attachment and sale of which he prayed, was outside the jurisdiction of the Munsif of East Budaun and he was ordered to explain how the Court had any power to proceed against it. Pending that explanation being received the application was to remain pending, On 29 April 1921, as no explanation had been given By the decree-holder, the application was dismissed, and on the same date he took back all the process-fees that he had deposited. A further application was filed by the decree-holder for execution on l2 January 1923. This time the property detailed was within the jurisdiction of the Munsif of East Budaun who had passed the decree. The Munsif dismissed the application holding that it was barred by limitation, limitation not being saved by the previous application of 4 March 1921, in that application was not in accordance with law, as the property was outside the jurisdiction of the Court and no application had been made, even after opportunity had been given, to transfer the decree to the Court in whose jurisdiction the property was situate. In appeal the Subordinate Judge held that the application was made to the proper Court; and concurred with the Munsif that it was not in accordance with law and therefore could not save limitation. It is not suggested that during the twelve days prior to the dismissal of the previous application on 23 January 1920, any act was done by the decree- holder which would bring his present application of 12 January 1923 within the period of limitation. The sole question, therefore, is whether the proceedings on the application of 4 March 1921 constituted an "application in accordance with law to the proper Court of execution, or to take some step-in-aid of execution."

(2.) The memorandum of appeal to this Court contains two grounds: (1) That the application of the 4 of March 1921 was a "step-in-aid of execution": and (2) that the application was made to a proper Court. We have noted that the Subordinate Judge held that the application was made to a proper Court and this ground was therefore superfluous. As to the second ground it may be remarked that the application is more correctly to be described as an application for execution rather than as a step-in-aid of execution. For the appellant it has again been argued hare: (1) that the application was made to a proper Court: (2) that the fact that the property specified as liable to attachment was outside the jurisdiction of the Court did not render the application one not "in accordance with law."

(3.) A third point taken that an alleged request in the application that the heirs be brought upon the record would in any case prevent the application being wholly one not in accordance with law was, as we have noted, abandoned in this Court as not being justified by the circumstances of the case. We have further pointed out that it was conceded by the lower appellate Court and we may add that it has not been disputed here that the application was made to a proper Court. There is therefore only one question remaining for determination, namely do the facts that all the property specified was outside the jurisdiction of the Court and that there was no prayer at any time before the application was struck off (though the Court allowed time for amendment) to transfer the decree for execution to the Court in whose jurisdiction the property was situated render the application of the 4th March 1921 one "not in accordance with law.". What is the meaning of this phrase? At an early stage of the case counsel for the appellant was asked whether, if it were to be held in the circumstances that the application was not made with any bona fide intention of proceeding to execution but merely with the intention of saving limitation, it could rightly be held to be "an application for execution" or "a step in aid of execution." Counsel very properly and frankly admitted that it was a very common practice for decree-holders to put in a colourable application asking for execution which they did not mean seriously to prosecute, but which they allowed to be dismissed merely with the intention of relying upon the fact that they had made such an application in order to obtain a further period of three years before execution of the decree could be held to be barred by limitation. He urged that the test of whether the application was made in good faith with a real intention to proceed to execution was never applied. It may be true to say that this aspect of such proceedings has been to a great extent lost sight of, but it is not accurate to say that the test has never been applied.