AWAPPA TATOBA CHAUGULE Vs. DATTO KRISHNA ADKE

JUDGEMENT

(1.) A mortgagee obtained a decree against his mortgagor under Section 15B of the Dekkhan Agriculturists Relief Act. Rather less than three years thereafter he applied to have the decree made final, and rather more than three years after the existing decree had been passed he applied for execution of the decree. His application for making the decree final had been rejected on the ground that it was unnecessary, the existing decree being one under Section 15-B of the Dekkhan Agriculturists Relief Act and therefore partaking of the nature of a final decree. The result was that the judgment-debtor objected to execution on the ground that the execution was out of time and was not saved by the decree-holder's application to have the decree made final, that not being an application to take a step in aid of execution made in accordance with law to the proper Court within the meaning of Art. 182(5) of the Indian Limitation Act. His contention was rejected by the executing Court and the judgment-debtor has come in appeal to this Court.

(2.) In our opinion he must succeed in his appeal. We have heard a good deal of argument, and several authorities have been cited to us, as to the meaning of the words "application to take a step in aid of execution of the decree." Without considering the authorities for the moment, and speaking for myself, I should say that in plain English those words would cover an application which was intended to facilitate the execution even of a decree which had yet to be passed. At any rate I am satisfied that in plain English they would cover an application for what was intended to be a step in aid of execution, even though in point of fact the application was unnecessary and on that account could not be regarded as being in fact of any assistance to execution. There are however other words in the article which appear to control the meaning of the words "application to take a step in aid of execution of the decree," and they are to be found in Explanation II and the provision that the application must be made to the proper Court. The combined effect, assuming that the application to take a step in aid of execution has to be made to the proper Court, is that the application to take a step in aid of execution has to be made to the executing Court, and that limits the application to the sort of application that can be entertained by an executing Court. An application to make a decree final could presumably be entertained only by the Court trying the suit. Such an application therefore cannot be an application to take a step in aid of execution within the meaning of Art. 182(5) unless it can be argued-as an attempt has been made in this case to argue-that the provision as to the application being made to the proper Court occurring in Art. 182(5) does not apply to applications to take a step in aid, but applies only to applications for actual execution.

(3.) There is some ingenuity in that argument, but we do not think that it is sound. The material part of Art. 182(5) runs as follows:- 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 stept in aid of execution of the decree or order. It is to be noticed that there is a comma after the word "execution" where it first occurs; and the argument is that, there being two alternatives separated by a comma, it would be justifiable to take the words "made in accordance with law to the proper Court for execution" as going all together and the next words "or to take some step in aid of execution" as entirely distinct from the former words. In other words, the argument is that the article refers to either an application for execution which has been made in accordance with law to the proper Court, or an application to take some step in aid of execution without any qualification whatever as to its being in accordance with law or made to the proper Court. It is not the natural way of interpreting the words of the article, and the consequences of so interpreting it would in many cases be absurd. It would, for example, permit someone who was not even a decree-holder to make an application to take a step in aid of execution of somebody-else's decree and the true decree-holder would thereafter be able to take advantage of such an application in order to save limitation. The consequences of the interpretation which we are asked to put upon the article are absurd, and no Court will so interpret the law if it is possible to avoid doing so; and in this case we do not think it in any way necessary to do so, and we decline to do so. In our view the application to take a step in aid of execution must be an application made in accordance with law and to the proper Court. To be in accordance with law an application must be in accordance with something which is provided by law, or in accordance with something which has been ordered by a Court, and there being a decree already in. existence under Section 15-B of the Dekkhan Agriculturists Relief Act, and that decree requiring in law no further final decree, it follows that the application was not In accordance with law in the first sense. It was indeed entirely superfluous.