NAGI REDDI SEETHARAMI REDDI Vs. THIKKAVARAPU KOTAMMA

JUDGEMENT

(1.) This appeal arises out of an execution petition No. 15 of 1945, filed in the District Court of Nellore, in O.S. No. 91 of 1932. The decree-holders obtained their decree on 6 December, 1932, and in the course of subsequent execution proceedings it was, in 1933, transferred for execution to the District Munsiff's Court, Nellore. On 4 December, 1044, within two days of the period of limitation laid down by Section 48 of the Civil P. C., the execution petition now in question was filed, the decree-holders asking: (a) that the decree transmitted in 1933 to the District Munsiff's Court should be ordered to be re-transmitted to the- District Court; (b) for the issue of notice to the judgment-debtors and (c) for attachment and sale of their immoveable properties. On 1 August, 1945, the District Judge made the following order: It is open to the applicant to treat this petition as a step-in-aid of execution and invoke its aid when he files the next execution petition. But he cannot ask me to treat this as a substantive execution, application when the decree has been transferred and there is no decree before me to execute and the copy of the decree with the non- satisfaction certificate has not been returned by the District Munsiff s. Court, Nellore. This petition is therefore incompetent and is hereby dismissed. The District Judge is thus saying that while he would have made an order simpliciter for re-transfer of the decree, yet he could not allow a substantive execution application which E.P. No. 15 of 1945 was in form.

(2.) Counsel for the appellants has cited a number of cases in support of his contention that although a decree may have been transferred for execution to another Court, the decree-holder nevertheless can always present an execution petition to the Court which passed the decree. He contends therefore that despite the fact that the decree in the present case had been transferred to the District Munsiff and was still in his Court and that no certificate had been returned in accordance with Section 41 of the Civil P. C., yet the District Judge was competent to entertain it and ought to have entertained it in the fullest possible way as an execution petition.

(3.) He has cited a number of cases in Madras, viz., Maharaja of Bobbili v. Narasaraju Peda Balaria Simhulu Bahadur (1916) 31 M.L.J. 300 : L.R. 43 I.A. 238 : I.L.R. 39 Mad. 640 (P.C.), Subbarao V/s. Ankamma and Seeni Nadan v. Muthuswami Pillai which support the view, which indeed we think to be well settled, that an application may always be made to the Court which passed the decree for an order re-transferring it if it has been transferred elsewhere and that such an application is a step-in-aid of execution and prevents limitation running against the decree-holder. The first sentence therefore of the District Judge is correct.