MOHAN SINGH Vs. JAGAT SINGH

JUDGEMENT

(1.) The question to be decided here is whether limitation of an application for execution filed in the Court of Small Causes on 13 February 1925, was saved or not by action taken by the decree-holder in earlier years. That Court passed the money decree on 2 June, 1920. The first execution application was presented by the original decree-holder on 16 November 1921, and the application was transferred to the Court of the regular Munsif of Fatehabad on 17 November 1921. During the pendency of proceedings in the Fatehabad Court the decree- holder died and his successors-in-interest, Durga Prasad and others, applied to that Court on 18 February 1922, for substitution of their names in place of that of the original decree-holder and for continuation of execution proceedings. They deposited process fee for service of notices on the judgment-debtors on 21st March 1922, and notices were issued. On 16 April 1922, the Fatehabad Court directed substitution of names and amended the application. The proceedings in execution were stayed because a connected original suit was pending and finally on 19 February 1924, the Fatehabad Court rejected the application The next application was filed in the Court of Small Causes on 13 February 1925, and was dismissed in default on 6 April 1925. Subsequent to this date the decree was sold to persons who are applicants in revision here and they applied for substitution and execution under Order 21, Rule 16, on 15 December 1926. This application was dismissed. The Court conceded that it was within time from the next preceding application of 13 February 1925, but it was of opinion that the application of Durga Prasad and others of 18 February 1922 did not save limitation as it was not made in the proper form of 18 columns to the proper Court of Small Causes, but was wrongly made merely for substitution and to the Court at Fatehabad, where the application was transferred for execution. When that application was removed the decree-holder would have to refer back to 16th November 1921, when the first application for execution was made by the decree- holder, and that was obviously of no benefit to the applicants because it was filed more than three years prior to the 13 February 1925.

(2.) The applicants have come here on the ground that the Court of Small Causes refused to exercise jurisdiction which was vested in it of executing the decree. I think the point was correctly argued by Mr. Laghate that the Court overlooked the consideration of the question whether the application of 18 February 1922, was or was not some step-in-aid of execution of the decree. The Subordinate Court refused the benefit of the application of 18 February 1922, on the ground that the application was not made in accordance with law to the proper Court of execution, but did not consider whether it was a step-in-aid of execution or not, The two matters are distinct under para. 5, Art. 182 and not concurrent. Mr. Shinde on behalf of the respondents relied on the defects in the application not being one for execution and to the proper Court, as directed by Order 21 Rule 16, and urged that those defects prevented the application from being one that could be treated as a step-in-aid of execution. It may be observed that the limitations are of an application being in accordance with law and to the proper Court where a step-in-aid of execution is put forward to save limitation. First of all I am not prepared to hold that the Fatehabad Court had no jurisdiction to substitute the names of the legal representatives of the decree-holder. Rule 1, Order 22, does apply to execution proceedings; only Rules 3, 4 and 8 of that order do not apply. There can, therefore, be no abatement of the application for execution. Rule 16 applies only to substitution along with execution and there does not appear to me to be any bar under any of the rules in Schedule 1, Civil P.C., to substitution of names by an executing Court when an execution proceeding is already pending.

(3.) Apart from this the application of 18 February 1922, was a step-in-aid of execution as warning the judgment-debtors that the decree-holder had died and that Durga Prasad and others desired subsequently to take proceedings in execution. This was giving the judgment-debtors an opportunity to object if they liked and they did not object. There can be no doubt that an application for substitution of names is a step-in-aid of execution. A Bench of this Court has held accordingly in Pitam Singh V/s. Tota Singh [1907] 29 All. 301. A judgment of the Madras High Court in Annamalai Mudaliar V/s. Ramier [1908] 31 Mad. 234, is of considerable interest when applied to the facts of the present case. There the application was made to the Court which passed the decree, but the objection taken was that it was merely an application for substitution and not one for execution as required under Section 232 of the previous Civil P.C., corresponding to Order 21, Rule 16. The learned Judges repelled this objection in the following words: We are unable to agree with this conclusion. The petition as appears from its terms was intended as a step-in-aid of execution as it sought the recognition by the Court of the petitioner's right to execute, which recognition it was open to the Court to grant or withhold. The question then arises. Was it an application in accordance with law? It is no doubt true, as pointed by Sir Bhashyam Aiyangar in Ramchandra Aiyar V/s. Subramania Chettiar [1904] 14 M.L.J. 393, that Section 232, Civil P.C., does not provide for an application in this form but contemplates that the transferee should apply for execution of the decree without any preliminary of the kind, merely giving notice of the application to the transferrer and the judgment-debtor. Consequently when instead of applying for execution, the appellant put in his application for recognition as transferee, the Court might have returned the petition to him for amendment as not in accordance with the section. Instead of doing this, the Court made the order prayed for and the defendant did not appeal against it as he might have. Under these circumstances the application must be taken to have been in accordance with law.