SARJU SINGH Vs. BHAGWAT PRASAD

JUDGEMENT

(1.) These are two appeals against the order dated 24 April 1935 of the District Judge of Patna whereby that Court directed that the execution case filed by Bhagwat Prasad decree-holder (now respondent) should proceed against the appellants in the Court of the 3 Subordinate Judge of Patna. The decree in question was passed in 1911 by the High Court of Calcutta in favour of some of the partners of a firm called Manabitram Kali Charan. That firm went bankrupt and its affairs were in the hands of a receiver for some years. Between 1930 and 1932 the heirs of the original decree-holders assigned their rights under the decree to Bhagwat Prasad. After the insolvency proceedings had terminated Bhagwat Prasad applied on 28 February 1933 to the Master of the Calcutta High Court for permission to execute the decree. Notices under Order 21, Rules 16 and 22, were issued to Sarju Prasad Singh and Tapsi Singh (the present appellants), of whom one (Sarju Prasad) is son of one of the original judgment-debtors and the other (Tapsi Singh) is nephew of the other original judgment- debtor. Sarju Prasad and Tapsi Singh did not appear in answer to the notices, whereupon the master made an order in the following terms: It is ordered that the said applicant, as such assignee as aforesaid be at liberty to execute the said decree against the said respondents. And it appearing that the said respondents have got no properties within the local limits of the jurisdiction of this Court but have got properties within the local limits of the jurisdiction of the Court of the District Judge of Patna it is further ordered that a certified copy of the said decree together with a certificate of non-satisfaction and a copy of this order be transmitted to the said Court of the District Judge of Patna for execution.

(2.) The decree, was then transferred for execution to the third Subordinate Judge of Patna and the judgment-debtors filed an objection in his Court. The Subordinate Judge after hearing the parties dismissed the execution case on the preliminary ground that it was barred by limitation. The decree-holder then filed two appeals in the Court of the District Judge, who has allowed his appeals and set aside the Subordinate Judge's order on the ground that the decree was revived by the Master's order. The question for determination is whether the decree has been revived within the meaning of the proviso to Art. 183, Lim. Act, by the Master's order dated 25 May 1933. The learned Advocate appearing for the appellants has drawn our attention to the observations made by a Full Bench of the Calcutta High Court in Chutterput Singh V/s. Sait Sumari Mull 1916 Cal 488. In that case it was held that an order of the Court's Registrar for transmission of a decree to another Court for execution did not constitute a revivor within the meaning of Art. 183 and that the Registrar would have no jurisdiction to adjudicate upon any matter such as limitation with reference to the question whether the decree was capable of execution. That decision was approved by the Judicial Committee of the Privy Council in Banku Behari Chattarji V/s. Narain Das Dutt 1927 PC 73 wherein it was held that an order of the Registrar of the Calcutta High Court transmitting a decree to a District Court for execution was a mere ministerial act of an officer of the Court and did not by itself operate to revive the decree so as to extend the time within which under Art. 183 an application to enforce it must be made. It is not disputed that notices under Order 21, Rules 16 and 22 were issued by the Master and served on the present appellants before the order for transmission was made. But it appears to have been held by the Calcutta High Court in Khajeh Salaluddin V/s. Afzal Begum 1925 Cal 23 that a notice under Order 21, Rule 16 would not operate as a revivor within the meaning of Art. 183. Again in Narain Das Dutt V/s. Banku Behari Chattopadhya 1925 Cal 213 the Calcutta High Court pointed out that: Order 21, Rule 10 expressly provides that if the decree has been transmitted to another Court the application for execution shall be made to that Court and in cases where notice under Order 21, Rule 22 has to be given that rule provides that the notice shall be issued by the Court executing the decree. Under the scheme of the Code, the Court transmitting a decree is not the Court to decide objections on the part of the judgment-debtor that the decree is incapable of execution or that execution is barred by limitation. Such objections should be taken before and heard and determined by the Court to which the decree is transmitted as the Court of execution.

(3.) The learned Advocate appearing for the respondent has relied upon certain decisions of the Madras High Court. In M.P.P.S. Palaniappa Chettiar V/s. Valliammal Achi 1929 Mad 252, the Chief Justice and Pakenham Walsh, J., held that though a mere order of transmission would not give a new starting point of limitation, an order of the Deputy Registrar recognising the assignment of a decree after issue of notices under Order 21, Rule 16 and transmitting the decree for execution to another Court would operate as a revivor. A perusal of the judgment reveals that the learned Chief Justice came to this conclusion after considerable hesitation and with extreme reluctance. We have also been asked to read the judgment of the Madras High Court in Kalepalli Rajitagiripathy V/s. Bhavani Sankaram 1924 Mad 673. In that case an order for transmission was made after notice to the judgment debtors, who did not object to the transfer on the ground that execution of the decree was then barred by limitation; it was held that the judgment debtors were precluded by the doctrine of res judicata from pleading the bar of limitation in a subsequent application for execution filed within three years of the previous application for transfer of the decree.