M KRISHNA PATTAR Vs. KSEETHARAMA PATTAR

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of South Malabar at Calicut who, reversing the order of the District Munsif, held that the decree-holder appellant's application to transfer the decree in O.S. No. 226 of 1916 from the Alatur District Munsif's Court to the District Munsif's Court of Vaiyitri for execution was barred by limitation. A prior petition for execution, E.P. No. 458 of 1919, had been presented on the 4 of July, 1918. In the course of that petition an application was put in by the judgment-debtor to record satisfaction of the decree on the 1 of August, 1919. A statement was then filed by the appellant on the 18 of August, 1919 praying that the judgment-debtor's petition to record satisfaction of the decree should be dismissed. The present application for transfer was made on the 26 of August, 1922. If time is calculated from the date of E.P. No. 458 of 1919, it is admitted that the present application is barred by time; but it was contended before the Subordinate Judge that the written statement of objections filed on the 18 of August, 1919 should be taken as "a step-in-aid of execution" under Art. 182(5) of the Limitation Act and that if time is calculated from the date the present application is not barred. In Kuppuswami Chettiar V/s. Rajagopala Aiyar (1921) I.L.R. 45 M 466 : 43 M L J 303 it was held that a statement filed by a decree-holder objecting to the judgment-debtor's application to enter up satisfaction of. the decree is not a step-in-aid of execution. Relying on that decision the learned Subordinate judge overruled the appellant's contention and dismissed his petition.

(2.) The same contention has again been pressed before us; and the learned Vakil for the appellant has tried to distinguish the case in Kuppuswami Chettiar V/s. Rajagopala Aiyar (1921) I.L.R. 45 M 466 : 43 M L J 303 on the ground that there was no pending execution application in that case, arguing from this fact that if there was a pending application in that case the learned Judges would have arrived at a different conclusion. He has also argued on the authority of various decisions that a statement of objections filed by the decree-holder in circumstances like the present should be held to be a step-in-aid of execution under Article 182(5) of the Limitation Act.

(3.) The facts of the case in Kuppuswami Chettiar V/s. Rajagopala Aiyar (1921) I.L.R. 45 M 466 : 43 M L J 303 were as follows: The decree was dated the and May, 1916 and the only prior execution petition presented by the appellant-decree-holder was dismissed on the 7 of September, 1916. Admittedly the execution petition out of which the appeal arose was presented out of time but it was said as in the present case that prior to the application for execution the judgment-debtor had put in a petition for entering up satisfaction of the decree and that in connection therewith the decree-holder had filed a counter-statement denying the receipt of money;and praying that the petition should be dismissed. It was contended that the application to reject the petition to record satisfaction of the decree was a step-in-aid of execution, but this contention was overruled. In the course of his judgment, Ayling, J. (who delivered the leading judgment) stated thus: The Art. 182(5) classes together an application for execution and an application to take some step-in-aid of execution and the latter words appear to be intended to cover an application, which is not an initial application for execution, but is an application to take some step to advance an execution proceeding, which is already pending, e.g., application to bring to sale properties already under attachment (p. 469).... But (whatever case may be made out for an application made in connection with a pending execution petition is one for taking a step-in-aid as furtherance of it, an application made at a time when no execution petition is pending stands on an obviously different footing.