KUMAR KAMAKHYA NARAIN SINGH Vs. KALIPADO DUTT

JUDGEMENT

(1.) The question in this appeal is whether the execution taken out by the present appellant who was the decree-holder, was barred by limitation. The point depends upon whether the application made on 1 October 1931, was an application to a proper Court and therefore a step-in.aid of execution. Speaking for myself, it seems to me that the matter is perfectly clear from the provisions of Section 38, Civil P.C. In Maharaja of Bobbili V/s. Narasaraju Peda Simhulu A.I.R (1916) . P.C their Lordships of the Judicial Committee decided a similar question. There the decree had been transferred from the District Court to the Court of the Munsif, and an application to the District Court, after the transfer, was held not to be an application to the proper Court, and, as the question of limitation depended upon whether that application was a step-in-aid of execution, their Lordships held that the application before them was barred by limitation.

(2.) Mr. Sinha who appears on behalf of the appellant however contends that the basis of the judgment of their Lordships of the Judicial Committee in that case was the fact that the property which was attached was property within the local limits of the jurisdiction of the Munsif's Court, and not of the District Judge, and that, had that not been so, the decision would have been different. This Court considered the decision of their Lordships in the case in Jnanendra Nath V/s. Kumar Jogndra Narain A.I.R (1923) . Pat. 384 and took the view that the decision of their Lordships depended not upon the question mooted by Mr. Sinha but upon the fact that the application to the District Judge was after the decree had been transferred to the Munsif. However, the decision is in point; it is a case entirely similar to the one which is before us and the decision of the learned Judges of this Court is therefore binding upon us.

(3.) Any suggestion that the case has been wrongly decided is one which, in the circumstances, cannot be sustained, particularly having regard to the statement of Das J. towards the end of the judgment in which he says: Section 38, Civil P.C., provides that a decree may be executed either by the Court which passes it or by the Court to which it is sent for execution,. which provision, the learned Judge seems to consider is conclusive of the matter, and if I may say so, with respect, I entirely agree with that view. The Section is disjunctive. It is not that a Court to which the decree is transferred as well as the Court from which it is transferred, may execute the decree, but "either or" is the expression used. The matter also seems to me to be still more clear from the provisions of Order 21, Rule 10, which are: Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof. In my judgment, as I have already stated, that puts the matter beyond any doubt. Nor does that view of the matter conflict with the principle which is laid down by Section 46 and is the principle which their Lordships of the Judicial Committee appears to have applied in Sarida Prosaud Mulick V/s. Luchmeeput Singh (1970) 14 M.I.R. 529. Section 46, as it now is, provides as follows: Upon the application of the decree-holder, the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and. specified in the precept.