VAPPU ROWTHER Vs. SIVAKATAKSHAM PILLAI

JUDGEMENT

(1.) The point to decide is, is the execution application in time? That would depend upon whether the previous application was for taking some step in aid of execution. The present application was within three years of the previous one and we are, therefore, to determine whether the latter was an application to take some step within the meaning of Art. 182 of the Limitation Act.

(2.) The Lower Courts have held in favour of the decree-holder. He is not here represented, but Dr. V. K. John who appears for the judgment-debtor has drawn our attention to numerous authorities on the point. I may mention that it was in a pending execution petition that the previous application was made. That application was for leave to bid and to set off the price against the decree amount. The question is, does such an application fall within the Art. 182 (5) of the Limitation Act?

(3.) On this point there is no decided case of the Madras High Court. The test in such cases has been laid down in Kuppuswami Cheittiar V/s. Rajagopala Aiyar (1921) I.L.R. 45 M. 466 : 42 M.L.J. 303 and it has been approved in the subsequent decisions Krishna Pattar V/s. Seetharama Pattar and Hamidudin Sahib V/s. Ghouse Sahib . The Art. says that the application must be to the proper Court to take some step in aid of execution. First, is the step in furtherance of execution? In other words, does it advance execution? Secondly, is the Court asked to take that step? In applying this test, there has been great difficulty and divergence of opinion. Let us examine if an application for mere leave to bid is a step within the meaning of the Article. Our attention has not been drawn to any Madras case on the point : but it has been held by the Allahabad and Bombay High Courts that an application of that kind is such a step. See Bansi V/s. Sikree Mai (1890) I.L.R. 13 A. 211, Dalel Singh V/s. Umrao Singh (1900) I.L.R. 22 A. 399 and Vinayakrao Gopal Deshmukh V/s. Vinayak Krishna (1895) I.L.R. 21 B. 331. In the second of these cases, the learned Judges observe thus: The fact that a decree-holder is prepared to hid for property and is anxious to purchase... brings the decree within nearer distance of complete execution and satisfaction...There are indeed three steps. There is the step of the application which the decree-holder makes; there is the step taken by the Court of granting permission, and there is the further step which the decree-holder again takes of availing himself of such permission by bidding at the sale.