SITA RAM RAI Vs. MADHO PRASAD

JUDGEMENT

(1.) This appeal was heard ex parte and allowed by me on 16 April 1937. But, on an application for the setting aside of the ex parte decision being made that decision was set aside and the appeal was restored to its original number and is for disposal before me today. After hearing the learned Counsel for the parties, I have come to the conclusion that my ex parte decision was erroneous and that this appeal must fail. The facts that give rise to the questions of law that have to be decided in the present appeal are undisputed and are as follows : A decree for costs was passed in favour of the appellant decree-holders by the Court of the Subordinate Judge of Azamgarh on 16 July 1928 and within three years of that date, viz. on 14 July 1931, the decree-holders filed an application in that Court under Section 39, Civil P.C. The application was on a form prescribed by Order 21, Rule 11, Civil P.C., and the prayer contained in the application was as follows: The property of the plaintiff-judgment-debtor lies within the jurisdiction of the Court of the Munsif of Bansgaon in District Gorakhpur. A certificate may therefore be drawn up for sale of the property of the judgment-debtor by auction.

(2.) This prayer was contained in col. 10 of the application in which column an entry is to be made as to the "mode in which the assistance of the Court is required." On the application being filed, the Court forthwith directed that a certificate of trans. for of the decree be prepared and be sent to the Court concerned. After the preparation of the certificate the case was again put before the Court with a note that the certificate had been prepared and the Court then ordered that the certificate be sent to the "Court concerned." The certificate was then sent to the Court of the Munsif of Bansgaon. It is admitted that no proceedings in execution were taken by the Munsif of Bansgaon and the decree remained wholly unsatisfied. A fresh application to execute the decree was made by the decree-holders on 20 July 1934 and this application was successfully opposed by the judgment-debtor in the Court below on the ground that the application was barred by limitation. The question that I have to decide is whether the application dated 20 July 1934 was or was not within time. It is clear that the application dated 20 July 1934 was within three years of 27 July 1931 the date on which the Subordinate Judge of Azamgarh disposed of the application dated 14 July and ordered the certificate about the transfer of the decree to be sent to "the Court concerned." The application dated 20 July 1934 was therefore within time if the application dated 14 July 1931 amounted to a step-in-aid of execution and was an application in accordance with law.

(3.) The decision in Todar Mal V/s. Phoola Kaur (1913) 35 All. 389 puts it, beyond doubt that an application made to the Court that passed the decree to transfer the same for execution to another Court is a step-in-aid of execution. The question however remains whether the application dated 14 July 1931 was an application in accordance with law. In Chattar V/s. Newal Singh (1890) 12 All. 64 it was hold that the expression "applying in accordance with law" means applying to the Court to do something in execution which by law that Court is competent to do. It was further observed in that case that the expression does not, moan applying to the Court to do something -which, cither to the decree-holder's direct knowledge in fact, or from his presumed knowledge of the law, he must have known the Court was incompetent to do.