BHAGWAT SAHAY Vs. KAM SUKRIT RAM

JUDGEMENT

(1.) IN this case the decree-holder obtained his decree on June 12, 1931. On July 8, 1932, on the application of the decree-holder, an order was made for transfer of the decree from the Court in which it was granted to the Court of the District Judge of Shahabad for execution. On July 5, 1935, the decree-holder took the next step by filing an application for the execution, of the decree in the Court of the District Judge of Shahabad. The question for our decision is whether the order for the transfer made on July 8, 1932, was a step in-aid of execution. The Munsif before whom this matter first came decided that it was a step-in-aid of execution aid therefore the application by the decree-holder filed on July 5, 1935, was within time under Art. 182, Clause (5). From this decision the judgment-debtor appealed to the District Judge contending that the application for execution on July 5, 1935, was out of time. The appeal was summarily dismissed and the judgment- debtor appealed to the High Court. The learned Judge before whom the matter came held that he was bound by the decision of this Court in Ramchandra Marwari V/s. Krishna Lal Marwari 3 P.L.T. 298 : 65 INd. Cas. 332 : A.I.R. 1922 Pat 301 : 1 Pat 328, to the effect that the order for transfer was properly termed a "step-in- aid of execution within the meaning of Art. 182, Clause (5), but he gave leave to appeal in Letters Patent because he was of opinion that a decision of their Lordships of the Privy Council in Banku Behari V/s. Naraindas Datt 54 I.A. 129 : 101 INd. Cas. 24 : A.I.R. 1927 P.C. 73 : 54 C. 500 : 52 M.L.J. 565 : (1927) M.W.N. 336 : 4 C.W.N. 474 : 31 C.W.N. 589 : 29 Bom. L.R. 850 : 38 M.L.T. 90 : 45 C.L.J. 507 : 26 L.W. 180 (P.C.), had a effect overruled that decision and the learned Judge had himself expressed this view in an earlier decision of his own in Gopal Tewari V/s. Ramdhari Pandey A.I.R. 1934 Pat 662 : 152 INd. Cas. 987 : 7 R.P. 288. It seems, however, quite clear that the distinction has been recognized by many of the other High Courts that the decision of their Lordships of the Privy Council dealt only with Art. 183. Moreover, the fact that the order for transfer is in the Dature of a ministerial act has nothing whatever to do with the material question for our decision as to whether that order was a step-in-aid of execution. IN my opinion the decision of this Court in Ramchandra Marwari V/s. Krishna Lal Marwari 3 P.L.T. 298 : 65 INd. Cas. 332 : A.I.R. 1922 Pat 301 : 1 Pat 328, was not affected in the least by the decision of the Privy Council and the order for transfer was a step-in-aid of execution and the subsequent proceedings by the decree-holder were consequently within time under Art. 182, Clause (5). For this reason I would dismiss this appeal. As there has been no appearance en behalf of the respondent, the appeal will be dismissed without costs. James, J.

(2.) I agree.