HAFIZ UDDIN Vs. (FIRM) PARSHADI LAL MONOHAR LAL

JUDGEMENT

(1.) The only question involved in this case is one of limitation. The applicant obtained a decree from the Small Cause Court, Delhi, on 2 October, 1929. He made an application to the Court passing the decree on 11 January 1930, asking for a Certificate of transfer to a Court in Meerut, where the decree-holder desired to execute his decree. The Court ordered on 17 February 1930, that a certificate be prepared. On 5 March 1930, the decree-holder deposited, the requisite court- fee for preparation or transmission (it is not clear which) of the certificate. On 8th March 1930, the certificate was prepared and handed over to the decree-holder and the case was consigned to the record room. No satisfaction of the decree was obtained on that occasion, and the decree-holder did not make any application till 27 February 1933, when the present application for execution was made at Meerut. The judgment-debtor resisted it and pleaded limitation. The lower Court upheld the judgment-debtor's plea and dismissed the decree-holder's application for execution, holding that the application having been made more than three years after the date of the decree must be considered to be barred by limitation, unless the final order on the application far transfer, dated 11 January 1930, be taken to have been passed within three years from the date of the present application. It was contended on behalf of the judgment-debtor that, though the application dated 11 January 1930, amounted to an application to the Court to take a step-in-aid of execution, the final order passed thereon was on 17th February 1930, when the Court ordered that the certificate be prepared. The present application was made more than three years from that date. On behalf of the decree-bolder it was contended that the payment of fee on, 5 March 1930, implied an application by the decree-holder that further action be taken for the preparation and transmission of the certificate and that, in any case the final order disposing of the application dated 11 January 1930, was passed on 8 March 1930, when the certificate was ordered to be handed over and was in fact handed over to the decree-holder for presentation at Meerut where the decree was to be executed.

(2.) It is not necessary to consider whether the act of depositing the requisite fee on 5 March 1930, implied an application to the Court to take a step-in-aid of execution within the meaning of Clause (5), Art. 182, as the final order on the application dated 11 January 1930, was not passed till 8 March 1930. It should be noted that, according to Art. 182, Clause 5 as amended in 1927, limitation is to be reckoned not from the date of the application, but from the date of the final order passed on an application to the Court to take some step-in-aid of execution. Order 21, Rule 6, Civil P.C., lays down the procedure for transfer of a decree for execution in a Court other than the one which passed it. It provides that a certificate setting forth that satisfaction of decree has not been obtained by execution in the Court which passed it, shall be sent with a copy of the decree to the Court in which execution is desired. The order of the Court dated 17th February 1930, merely directed the office to prepare a certificate. That order cannot be considered to have finally disposed of the application which prayed that the certificate be transmitted. The proceedings taken by the Court on 8 March 1930, should be considered to have finally disposed of the application dated 11th January 1930. On that date the required cerrificate was prepared and handed over to the decree-holder, who had undertaken to present it before the Meerut Court. This being done the fact was noted on the application and the record was ordered to be consigned. If is true that there is no definite order in black and white directing the office to hand over the certificate to the decree-holder; but in my opinion this is clearly the effect of the proceedings of that date, as on no previous occasion after the application of 11 January 1930, the Court passed an order that the certificate be transmitted. Without a specific order of the Court a certificate could not be transmitted as required by Order 21, Rule 6

(3.) For the reasons stated above, I hold that the decree-holder's application, dated 27 February 1933, which was within three years from 8 march 1930, was within time. The result is that this application is allowed, the order of the lower Court is set aside and the case is sent back to that Court with a direction that the decree-holder's application for execution be dealt with according to law. Costs shall abide the result.