ABDUL HAFIZ SAHEB Vs. ABDUL SUKKUR SAHEB

JUDGEMENT

(1.) The only question arising for determination in this Revision Petition is whether the execution petition which has been ordered by the lower Court was in time. This in turn will depend upon whether an earlier execution petition dated 7 August, 1933, which was presented to the District Munsiff's Court, Trichinopoly, was an application in accordance with law and presented to the " proper Court ".

(2.) The decree under execution is one passed by the Court of Small Causes at Trichinopoly. As one of the defendants had immovable property within the Munsiff's jurisdiction, the decree seems to have been transferred to the District Munsiff's Court and as a result of proceedings taken there, some of the immovable properties were sold and part of the decree amount realised during the year 1930. On 7 August, 1933, an application was made to the District Munsiff's Court for an order to arrest the second defendant in the suit. It is now common ground that by that date no report had been sent by the District Munsiff's Court to the Court of Small Causes so as to deprive the Munsiff's Court of the power to execute the decree any further. The Munsiff's Court however returned the application on 7 August, 1933, with the following endorsement: Legal representatives cannot be added in this Court. This application may be made to the Small Cause Court.

(3.) This endorsement refers to the fact that by that time the first defendant was dead and if the decree-holder wanted to bring his legal representative on record an application for that purpose must be presented only to the Court which passed the decree. In answer to this endorsement it was rightly pointed out on behalf of the decree-holder that execution was at that time sought only against the second defendant and that when he thought fit to take execution proceedings against the legal representatives of the first defendant he would apply to the Court which passed the decree. For some reason not appearing on the record the District Munsiff's Court nevertheless returned the application stating that the petitioner will apply for retransfer of the decree to the Small Cause Court and ask for arrest therein. After re- transfer and re-presentation, that petition was dismissed for non-payment of batta by the Court of Small Causes. Saheb.