KASIVAJJALA RAMASWAMI Vs. BODDU VEERANNA

JUDGEMENT

(1.) The question for decision in this case is whether an application by the decree-holder for extension of time to file an encumbrance certificate can be said to be a step-in-aid of execution within the meaning of Art. 182, Clause (5) of the Limitation Act. In Kuppuswami Chettiar V/s. Rajagopala Aiyar (1921) I L R 45 M 466 : 42 M L J 480 it was decided that a statement by a decree-holder objecting to the judgment-debtor's application to enter up satisfaction is not a step-in-aid of execution. Applying the principle of that decision we must hold that the present application does not amount to a step in aid of execution, as "it does not ask the Court to take any step in aid of execution." The decision in Hamid-Udin Sahib v. Ghouse Sahib (1926) 24 L W 498 : 51 M L J 489 is an express decision on the question before us. There it was decided that an application like the present one cannot be said to be a step- in-aid of execution. In that case, reliance was placed upon the decision in Kuppuswami Chettiar V/s. Rajagopala Aiyar (1921) ILR 45 M 466 : 42 MLJ 303 and also on the decision in Krishna Pattar V/s. Seetharama Pattar (1926) ILR 50 M 49 24 LW 488 : 51 MLJ 480, which, following Kuppuswami Chettiar V/s. Rajagopala Aiyar (1921) ILR 45 M 466 42 MLJ 303, again held that the filing of a statement by a decree-holder objecting to the judgment-debtor's application to record satisfaction of the decree is not a step-in-aid of execution. In Hamid-Udin Sahib V/s. Ghouse Sahib (1926) 24 LW 498 : 51 MLJ 489 all the cases which have been now cited before us have been noticed.

(2.) Two decisions were specially relied upon by the appellant, namely Abdul Kader Rowther v. Krishnan Malaval Nair (1913) ILR 38 M 695 : 26 MLJ 433 and Kunhi V/s. Seshagiri (1882) ILR 5 M 141. No doubt the decision in Abdul Kader Rowther V/s. Krishnan Malaval Nair (1913) ILR 38 M 695 : 26 MLJ 433 to the effect that an application to adjourn the case for the production of evidence amounts to a step-in-aid of execution does support the appellant; but this case was subsequently dissented from in Masilamani Mudaliar V/s. Sethuswami Aiyar (1916) 41 M 251 : 32 MLJ 219 by Ayling, J. The decision in Kunhi V/s. Seshagiri (1882) ILR 5 M 141 in view of the special facts of that case does not support the appellant's arguments. There, it was found necessary that an order should be obtained from the Court for the purpose of proceeding with the execution of the decree and when the petitioner asked the Court to issue such an order it was held that the application containing that request amounted to a step-in-aid of execution. This case has been explained in the decision in Krishna Pattar V/s. Seetharmna Pattar (1926) ILR 50 M 49 24 L W 488 : 51 MLJ 480.

(3.) The decision in Kuppuswami Chettiar V/s. Rajagopala Aiyar (1921) ILR 45 M 466 : 42 MLJ 303 has been followed not only in the two Law Weekly cases already referred to but also in Balagurusami Naicken V/s. Guru-Swami Naicken (1924) 48 MLJ 506. (1916) 33 IC 79 . It would thus appear that our Court has fairly consistently held that an application to amount to a step- in-aid of execution within the meaning of Art. 182, Clause (5), should be one asking the Court to take some step in furtherance of the execution of the decree. The only decision which appears to us to hold a contrary view is the one in Abdul Kadar Rowther V/s. Krishnan Malaval Nair (1913) 38 M 695 : 26 MLJ 433. Ravur Munusami Naidu V/s. Pandala Muthial Naidu (1916) 33 IC 79 simply follows this decision. As we have already pointed out, Abdul Kadar Rowther v. Krishnan Malaval Naiar (1913) 38 M 695 : 26 MLJ 433 has been dissented from in Masilamani Mudaliar V/s. Sethuswami Aiyar (1916) ILR 41 M 251 : 33 MLJ 219. The trend of the decisions of our Court is in support of the view held in Kuppuswami Chettiar V/s. Rajagopala Aiyar (1921) ILR 45 M 466 : 42 MLJ 303. We think that decision so far as it relates to the point argued before us lays down the correct principle..