DWARKADAS GOBINDRAM FIRM Vs. SALIGRAM REKHRAJ FIRM

JUDGEMENT

(1.) This is an appeal by a decree-holder from an order passed by the Subordinate Judge of Chaibassa, dismissing his petition for execution on the ground of limitation. The decree which is sought to be executed was passed by the Subordinate Judge of Wardha on 21 January 1932. On 1 March 1932, the appellant applied to the Subordinate Judge to transfer the decree to Jamshedpur for execution and his application was granted on 14 March 1932. The appellant however took no steps at Jamshedpur and so the decree could not be executed. On 4 March 1935, he made a second application to the Subordinate Judge at Wardha in which he asked him to re-call the proceedings from Jamshedpur so that the decree might be executed at Wardha.

(2.) The Subordinate Judge however before passing any final order on the petition wanted to be satisfied that the decree had not been executed at Jamshedpur and the decree-holder filed an affidavit to this effect on 5 March 1935. Thereupon the Subordinate Judge of Wardha issued a warrant of arrest against the judgment- debtor as was prayed for by the decree-holder. The judgment-debtor, however, could not be arrested and the execution proceedings were struck off on 3 May 1935. On 9 November 1935 the decree-holder made a third application to the Subordinate Judge at Wardha asking him to transfer the decree once more to Jamshedpur. This application was granted and the decree was transferred on 21st November 1935. On 9 July 1936 the present application for execution was filed at Jamshedpur but it was opposed by the judgment-debtor on the ground of limitation. His contention was that the application made by the decree-holder on 4 March 1935 before the Subordinate Judge at Wardha asking him to re-call the execution proceedings from Jamshedpur was not an application made to the "proper Court" and therefore did not save limitation under Art. 11, Limitation Act. This contention has been upheld by both the Courts below and hence this appeal.

(3.) The Courts below have relied mainly on the well-known case in Maharaja of Bobbili V/s. Narasaraju Peda Baliara Sinhulu A.I.R (1916) P.C. 16 in which it was held by the Privy Council that when a decree passed by a District 1 Court had been sent to the Court of a Munsif for execution and had not been returned to that Court, an application for execution made in the first Court was not an application to the proper Court and therefore did not save limitation. This case has been much discussed in recent times and while some of the Courts have rigidly followed it and held that until the Court to which a decree is transferred for execution sends to the transferring Court the certificate under Section 41, Civil P.C., the latter Court cannot entertain an application for execution; it has been laid down in certain cases that even after the decree has been transferred to another Court, the Court which passed the decree is not precluded from entertaining an application for execution under certain circumstances, as or instance, when the decree-holder proposes a different mode of execution or wishes to proceed against a different property. It has also been pointed out in some cases that the point on which the Privy Council rested their decision in Maharaja of Bobbili V/s. Narasaraju Peda Baliara Sinhulu A.I.R (1916) P.C. 16 was that the decree-holder wished to sell in that case certain land which was within the jurisdiction not of the District Court but within the jurisdiction of the Munsif to whom the decree had already been sent for execution: see Rajani Kanta V/s. Golam Mahiuddin and Fatechand Rampratap v. Jitmal Rupchand A.I.R (1929) Bom. 418. In my opinion it is unnecessary for the purpose of deciding this appeal to discuss the divergent views which have been expressed with reference to Maharaja of Bobbili V/s. Narasaraju Peda Baliara Sinhulu A.I.R (1916) P.C. 16.