MOHAN LAL DAS Vs. BAPUJI GHELABHAI JOSHI

JUDGEMENT

(1.) THIS is an appeal from order passed in execution proceedings. The decree in question was made on the 3 September 1901. On the 31 July 1903, the judgment-creditor applied for execution and in that application the Court was requested to issue a warrant of attachment. Notice was issued under Section 248 of the old Civil Procedure Code. The case was fixed for the 5 August next following. Notice was twice returned unserved, but ultimately it was served and an affidavit of service was filed by the creditor on. the 11 November 1903. Thereupon warrant issued on the 16 November. On the 9 December 1903, the Court endorsed on the application for execution a note that as a third person had undertaken to pay the sum of Rs. 8, the judgment-creditor did not wish to proceed with this execution. On the 7 November 1906, this present application was made. It is admittedly out of time, unless it can be saved by some steps taken in aid of execution after the 31 July 1903. The two incidents relied upon as furnishing this evidence are the creditor's affidavit of the 11 November 1903, and the endorsement of the 9 December. The learned District Judge has, not without some hesitation, as we gather, allowed these matters to be regarded as steps-in-aid. But for our own part, we are not able to take that view. As regards the affidavit of the 11 November that was on a printed form and referred merely to the service of the notice. It is true that upon this affidavit warrant was issued, but that, as we take it, was done in pursuance of the original application of July in which the issue of a warrant was expressly prayed for. We cannot regard this affidavit as an application at all. Nothing is applied for, only the service of the notice is certified. But it is said that the affidavit ought to be construed as compelling the Court to infer that it was accompanied by an oral application in aid of execution. As to that, however, this Court has held in Malukchand Tarachand v. Bechar Natha 25 B. 639 that the payment of bhatta is not sufficient to compel an inference that an application must have been made. And we cannot see how the existence of such an affidavit as this is in any better case than the payment of bhatta. Upon this point we agree with what was said by the High Court of Calcutta in Rajkumar Banerjee V/s. Rajlakhi Dabi 12 C. 441 It appears to us that the only application of which this record contains any indication is the application on the 31 July. And apart from technicalities, we do seriously doubt whether with the affidavit any application of any kind was actually made to the Court. It seems to us more probable, as the lear ned Subordinate Judge took to be the case, that the warrant issued as of course upon the filing of the affidavit which was regarded merely as the satisfaction of a condition inherent in the application of the 31st July, the condition namely, that service must be certified before that application could be completely granted. We think, therefore, that this affidavit cannot fairly be construed as an application in aid of execution. And it seems to us still more clear that that construction cannot be extended to the Court's endorsement of the 9 December, for professedly that endorsement constituted not a step-in-aid of, but a step in hindrance or in actual stoppage of execution, for its purport is that the creditor does not want to proceed to execute this warrant. It follows that, in our opinion, the order of the District Judge should be set aside and the order of the Subordinate Judge restored. The appellant should have his costs throughout.