ANKINEEDU PRASAD BAHADUR GARU Vs. MANDAVA JAGGAYYA

JUDGEMENT

(1.) I think the order of the District Judge is right. The decree was passed by the District Munsif of Avauaigadda on 25 April 1911. The decree-holder applied on 19 April 1923 for transmission of this decree to the District Munsif's Court at Gudivada. The decree was transmitted by an order made on 5 July 1923 and it was received by the District Munsif of Gudivada on 12 July 1923. In the meantime, on 20 April 1923 the decree-holder applied to the Gudivada Munsif for execution of his decree. On that date, the application was clearly incompetent as the decree had not then been received at Gudivada. It was dismissed and, thereupon, the plaintiff applied for its restoration on 30 July 1923. His prayer was granted by the District Munsif. The District Judge is right in pointing out that the District Munsif had no power to restore an application which was defective from want of jurisdiction.

(2.) I am now asked on behalf of the plaintiff to treat the application dated 30 July 1923 as one in continuation of the application presented on the 19 April to the Court which passed the decree. The fact is, if the application of the 30 July is not treated as a substantive application but as merely one in continuation of the application of the 19 April, Section 18, Civil P.C. would not stand in the way of the plaintiff. For the latter application was made within 12 years of the date of the decree; but the application of the 30 July was clearly beyond that period. I do not think I can accede to this contention put forward by the plaintiff. There is no, prayer for execution in the application of the 19 April and I cannot treat it as an execution application. It follows, therefore, that the application made in July cannot be deemed to be a continuation of the application made in April as the latter was strictly not an execution application: see Nilmoney Singh Deo V/s. Biressur Banerjee [1889] 16 Cal. 744, Suja Hossein v. Monohur Das [1895] 22 Cal. 921, Jeewan Das V/s. Ranchaoddas Chuturbhuj [1911] 35 Bom. 103, Khetpal V/s. Tikam Singh [1912] 34 All. 396, and Sultan Begam V/s. Sarni Begam A.I.R. 1923 All. 93 at p. 126 (of 48 All.} The decision relied on by the learned advocate for the plaintiff K.B. Dutt V/s. Tara Prasanna A.I.R. 1924 Pat. 120, is distinguishable, as the application made in that case to the original Court was assumed to be an execution application.

(3.) The appeal as well as the revision petition are dismissed, but I make no-order as to costs.