MASILAMANI MUDALIAR Vs. SETHUSWAMI AIYAR

JUDGEMENT

(1.) 1st respondent in this caseis the assignee decree-holder in Original Suit No. 379 of 1906 on the file of the Court of the District Munsif of Kumbakonam, and the sole question for disposal is whether his Execution Application (E.P. 526 of 1914) presented on 12th August 1914 was barred by Article 182 of the Indian Limitation Act, 1908 (Schedule I). The next previous application of which there is record was Execution Petition No. 385 of 1911, presented on 13th July 1911; but the decree-holder relies on the following circumstances to save limitation: (1) An oral application in aid of execution presumed to have been made on the 12th August 1911, in the course of the hearing of Execution Petition No. 385 of 1911. (2) An alleged payment towards the decree on 17th August 1911.

(2.) As regards the first, the facts are simple. In Execution Petition No. 385 of 1911, the decree-holder applied for attachment and sale of the judgment-debtor s moveables after issue of the preliminary notice required by Order XXI, Rule 22 of the Code of Civil Procedure. Notice was accordingly issued to the judgment-debtor for 12th August 1911. On that date as the judgment-debtor did not appear, attachment order was issued; but, as the decree-holders failed to pay batta within the time allowed, the petition was dismissed on the 26th August 1911. The Subordinate Judge says: It seems to me, looking to the liberal spirit in which acts done by a decree-holder are viewed by the Madras High Court to operate as steps in aid of execution (vide 1914, Madras Weekly Notes, page 563) it will not be wrong to hold that the decree-holder should be presumed to have made an oral application for issue of a warrant of attachment on 12th August 1911 and this was a step-in-aid of execution.

(3.) Now in my opinion the utmost that can be presumed is that the decree-holder was present in court on 12th August 1911, either in person or by pleader, and intimated his desire to proceed with execution. He had already asked for attachment in his written application; and assuming that he repeated his request by word of mouth in court, I am unable to see any ground for viewing this as a fresh step-in-aid of execution. The point is, not that the application was oral, but that it was the merest repetition, and an entirely superfluous repetition, of an application, which he had already made in writing, and which was pending orders of the court. None of the cases relied on by the 1st respondent s vakil seem to me to be of use to him. In the Calcutta Full Bench Case, Ambica Pershad Singh v. Sardari Lal (1884) I.L.R. 10 C. 851 there was an application to issue proclamation nearly a year after the attachment, which indeed the Judgment-debtor claimed to be no longer subsisting ; and Judgment of Garth, C.J., makes it quite clear that he held that, without such a fresh application, no further action should have been taken by the court. In Vijiaraghavalu Naidu v. Srinivasalu Naidu (1905) I.L.R. 28 M. 399 the batta Memorandum was accompanied by a written application; and the court lays stress on the fact that the proclamation would not have issued if the batta Memorandum had not been put in. Abdul Kader Rowther v. Krishnan Malaval Nair (1914) I.L.R 38 M. 695 : 26 M.L.J. 433 is a case in which Sadasiva Aiyar and Spencer, JJ., held that an oral application by a decree-holder for an adjournment to enable him to adduce evidence was a step-in-aid of execution. This is a view, in which speaking with all deference, I find it impossible to concur; and, if the facts of that case were similar to those of the present case, I should be inclined to make reference to a Full Bench. Fortunately they are not; and with the general principle enunciated I have no quarrel, i. e., if even an oral application is for an order which is really a step-in-aid, it may be treated as within the scope of Article 182 of the Indian Limitation Act. I am inclined to think however that such applications will be rare.