SADAKSHARAPPA KABBUR Vs. KARLINGAWA KARADI

JUDGEMENT

(1.) The appellants in both these appeals are assignees of the decree-holder of two decrees obtained against two judgment-debtors, the dates of the decrees being August 14, 1930, and August 4, 1928. The questions involved in both the appeals are the same. I shall take the facts in second appeal No. 665 of 1942. In that case the decree was passed on August 14, 1930. Darkhast No. 323 of 1933 was the first darkhast filed on April 11, 1933, to: execute it. On a third party objecting and claiming interest in the property sought to be proceeded against the darkhast was dismissed on February 20, 1936. The present darkhast, being the second darkhast, was filed on June 9, 1939, that is, more than three years after the last darkhast was disposed of. The appellants sought to bring it within time relying on a suit, namely suit No. 75 of 1936, which was filed by them under the provisions of Order XXI, Rule 63, Civil Procedure Code, for a declaration that the property was liable to be sold as belonging to the judgment-debtor, although it had been alienated to the person who objected in the earlier darkhast, the alienation being bad under Section 53 of the Transfer of Property Act, 1882. The decree-holder succeeded in this suit and thereafter filed the present darkhast. The only question arising in this appeal is whether the present darkhast is in time. The answer to that question depends upon the construction to be placed on Clause 5 of Art. 182 of the first schedule to the Indian Limitation Act, which gives a period of three years from the date of the final order passed on " an application made in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order.

(2.) Both the Courts below have held against the appellants, holding that the suit of 1936 cannot be regarded as an application to take some step in aid of execution within the meaning of Art. 182, Clause 5. The lower appellate Court has further held that the Court in which the suit was filed cannot be regarded as the proper Court within the meaning of the said article. The appellants relied on two Oudh cases, Hasan Shah V/s. Md. Amir [1930] A.I.R. Oudh 468 and Rudra Narain V/s. Maharaja of Kapurthala [1936] A.I.R. Oudh 248, as well as on Vishvanath v. Narsu (1920) 23 Bom. L.R. 107. The lower appellate Court has held that the Bombay decision is inapplicable and preferred to follow the rulings of the High Courts of Madras, Calcutta and Nagpur in Ramasubbayya V/s. Thimmiah [1942] A.I.R. Mad. 5, Raghunmdun Pershad V/s. Bhugoo Lall (1889) I.L.R. 17 Cal. 268 and Rajaram V/s. Paiku [1940] Nag. 334 which decided/first, that the plaint in a declaratory suit like the one which is relied on in this appeal cannot be regarded as a step in aid of execution within Art. 182(5) of the Indian Limitation Act, and, secondly, that the Court in which the suit under Order XXI, Rule 63, is filed cannot be regarded as the proper Court within the meaning of the said article. The decision in the two Oudh cases is to the effect that in such a case the suit can be regarded as an application to take a step in aid of execution.

(3.) In order that Clause 5 of Art. 182 of the first schedule to the Indian Limitation Act may apply there must be three things: first, ah application made in accordance with law, secondly, the application must be made to the proper Court, and, thirdly, it must be either for execution or to take some step in aid of execution. To take the last point first, there can be no doubt, as pointed out in Murgeppa V/s. Baswantrao , that the application in accordance with law to the proper Court must be one which asks that Court to do one of two things, namely to execute the decree or to take some step in aid of execution. The words of the clause in question cannot be read, as Mr. Jathar at one stage of his argument attempted to read them, so that the words "to take some step in aid of execution" should be read independently of the word "application." As against the decision of the Oudh Court there is a unanimity in the decisions of the other High Courts which I have mentioned (Madras, Calcutta and Nagpur) that a suit of the description we are concerned with here cannot be regarded as a step in aid of execution. Before dealing with the said decisions I may mention the two Bombay decisions cited before us, Vishvanath V/s. Narsu (1920) 23 Bom. L.R. 107 and Murgeppa V/s. Baswantrao . In the first of those cases an application was made in the execution proceedings for time to enable the decree-holder to ascertain the share of the judgment-debtor in the property put up for sale, and it was held that such an application was within the terms of Clause (5) of Art. 182. Mr. Justice Shah remarked. that the expression "step in aid of execution of the decree" ought to be construed liberally. But in that case the application was made to the proper Court, viz. the executing Court, and it was a proper application made for a purpose necessary for the execution of the decree, for the decree-holder was unable to proceed with his darkhast unless he had ascertained what share the judgment-debtor had In the property sought to be brought to sale. In Murgeppa V/s. Baswamtraa an application was made by the decree-holder to obtain a succession certificate and it was held that such an application might be regarded as a mere preparation or preliminary to execution but not as a step in aid of execution. The Court also took the view that the Court before which such an-application was made could not be said to be the proper Court within the meaning of the clause in question, though in that case the application was actually made to the Court in which the execution was proceeding. The words "proper Court" are defined in Explanation II to Art. 182 as meaning "the Court whose duty it is to execute the decree or order." Batchelor J. remarked, It appears to us that it could not have been the intention of the Legislature that such a question as this should be decided on a mere accident of that sort.