PENUGONDA RATTAM Vs. KORASIKA THATHA

JUDGEMENT

(1.) The question for decision in this appeal is whether the execution applications E.P. No. 776 of 1912 and 800 of 1913 were made to the proper Court so as to save limitation. The decree in the suit was passed by the District Munsif s Court of Rajamundry on September 22nd 1903. In 1905 the jurisdiction over the village Tadimella where the plaint property was situated was transferred to the Tanuku Munsif s Court. The decree so far as the delivery of the property was concerned was executed in 1908 in the Tanuku Munsif s Court. On 4th May 1912 the jurisdiction was again transferred from the Tanuku Court to the Kovvur Munsif s Court. The original decree holder presented the application (E.P. No. of 1912) and his heirs presented the application (E.P. No. 800 of 1913) in respect of the unsatisfied portion of the decree for mesne profits and costs to the Rajamundry Munsif s Court on 20-9-12 and 1-8-1913 respectively. In the first petition, the decree holder merely asked for transmission of the decree to Kovvur Munsif s Court. In the second petition, the prayer was for transmission of the decree to Kovvur and for recognising the petitioners 2 and 3 (appellants) as legal representatives of the deceased decree holder. The last preceding application E.P. 1335 of 1909, which was presented in the Tanuku Munsif s Court, was dismissed on 4th January 1910. The present execution petition E.P. No. 1522 of 1913 was presented on the 13th Nov. 1913.

(2.) It follows therefore that unless E.P. 776 of 1912 and 800 of 1913 were presented to the "proper Court " E.P. No. 1522 of of 1913 is barred. (See Clause 5 of Article 182 of the Limitation Act). It cannot be doubted that a petition although it is a step in aid of execution will not save limitation unless it is presented to the proper Court. Maharaja of Bobbili v. Sree Raja Narasaraju Peda Baliar Simhulu Bahadur (1912) I.L.R. 37 M. 231.

(3.) Section 38 Civil Procedure Code provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 37 Civil Procedure Code defines the expression " Court which passed the decree " as including " (B--) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of the making the application for execution of the decree would have jurisdiction to try such suit."