JADU NATH SINGHA Vs. KRISHNA RANGINI DASSYA

JUDGEMENT

(1.) This appeal arises out of. an application for execution. The judgment-debtor objected that the application for execution was time-barred. The objection was overruled by the first Court and it was allowed by the lower Appellate Court and the application for execution was dismissed. The facts appear to be these: The application for execution in the present case was made on the 27 July 1922. It was contended by the decree-holder that the limitation was saved, because on the 29 July 1919 an affidavit was put in proving that certain notice under Order XXI, Rule 66, C.P.C. had been served on the judgment-debtor. It would appear that in this former execution case notice had been duly served under Order XXI, Rule 22 and service of these notices was proved on the 12 July 1919. The Court then ordered that notice under Rule 66, Order XXI should be given to the judgment-debtor in order that he might be present to assist the Court in drawing up the sale proclamation. It may be pointed put that this issue by the Court of the notice under Order XXI, Rule 66 could not of itself be described as an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution because this notice was issued not on the application of the decree- holder but by the Court itself on its own motion and, therefore, the issue of the notice could not come in under cl.(c) Art. 182 of the Limitation Act as an application to Court to take some step-in-aid of execution.

(2.) Be that as it may, the decree-holder does not depend on the issue of the notice to save limitation. He contends that oh the 30 July an affidavit was sworn by the -identifier that the notice had been served and he contends that this swearing on the affidavit on the 30 July was a step-in-aid of the execution. I do not think that there is any substance in this contention. The swearing of an affidavit by the identifier cannot by any stretch of imagination be described as applying in accordance with law to the proper Court for execution or to take some step-in-aid of execution which clearly means some application made by the decree- holder. It does not, however, appear that he made any application on the 30 July. All that was done was that an affidavit proving service of notice was put in. This is merely a proof of the fact that a certain act had been done. It does not seem to me that it was an application to the Court to take any further step, because, in the first place, the decree-holder had nothing whatever to do with the issue of this notice under Rule 66, Order XXI, C.P.C. That was a matter for which the Court was responsible and which the Court took on its motion and not on any application of the decree-holder. The decree-holder was not in any way responsible whether these notices under Rule 66 were or were not served.

(3.) Dr. Pal who has appeared for the appellant has referred us to the case of Pran Krishna Das V/s. Protap Chandra Dalai 38 Ind. Cas. 536 : 21 C.W.N. 423 in support of his contention that the filing of an affidavit in proof of service of notice was a step-in-aid of execution, The facts of that case, however, are different from those of the present case. In that case the question was as to the service of notice under. Order XXI, Rule 22 which had to be served on the judgment- debtor before any further step in execution could be taken. Mr. Justice Woodroffe in disposing of the case remarked, "I am not myself disposed in the present case to take a narrow view of the facts, and from these facts we have it that notice was served in pursuance of a previous order of the, Court, that the service was proved, and that may be taken to be an invitation to the Court to proceed to the next order which should have been made in these proceedings, namely, that the decree be executed." The reason being possibly that until notice had been served on the judgment-debtor under Order XXI, Rule 22 no further step-in-execution could be taken. This case has been distinguished in the case of Annopurna Thakurani V/s. Dhirendra Nath Chakravarty 54 Ind. Cas. 1 : 24 C.W.N. 55 : 30 C.L.J. 518 a decision to which I was myself a party and where it was directly held that the swearing of an affidavit merely filed by the decree-holder's identifier unaccompanied by any application oral or written does not give a fresh start to limitation. In the present case it does not appear that there was any application either written or oral made on behalf of the decree-holder at the time when the affidavit was filed. So it cannot be said that an application was made by the decree-holder to the Court to take any step-in-aid of execution.