BHISHUNDEO NARAIN MISSIR Vs. RAGHUNATH PRASAD MISSIR

JUDGEMENT

(1.) This is a judgment-debtor's appeal from an order of the learned District Judge of Muzaffarpur, dated 18 May 1939 affirming an order of the Subordinate Judge of Muzaffarpur, dated 14 February 1939 dismissing an application under Section 47, Civil P.C., in execution proceedings. The point now taken is one of limitation, and the dates material to the determination of the question are as follows: It is contended, first, that the application for transfer, filed on 20 July 1935 before the Munsif of Darbhanga, was not a step-in-aid of execution within the meaning of Art. 182(5), Limitation Act, because it was not made in accordance with law, as it was for transfer to a Court having no jurisdiction; if this application was not a step-in-aid, giving a fresh start for limitation under Art. 182(5), then the present application must be barred by limitation.

(2.) Secondly, even if that application be taken to be a step-in-aid, the second application for transfer filed on 18 July 1938, before the Munsif at Darbhanga, cannot be taken to be a step-in-aid, because it was not made to the proper Court; as the decree had been previously transferred to Muzaffarpur, and no certificate of non. satisfaction had been received by the Munsif, Darbhanga, he had no jurisdiction to entertain a fresh application for execution or for transfer of the decree.

(3.) If the application of 18 July was not a step-in-aid, then the application for execution dated 22 July, 1938, would, in any case, be out of time, being more than three years after the application of the 20 July 1935. The Court below has held that the application of 20 July 1935 was a step-in-aid. It has recorded no clear finding with regard to the application of 18 July 1938, but it may be presumed that it was its opinion that it could not have saved limitation, because it holds that the application of 22 July, 1938 was in time, as the decree-holder under Section 14, Limitation Act, was entitled to exclude the time spent in prosecuting his application made in 1936 to the Subordinate Judge, this being a proceeding prosecuted with due diligence in good faith in a Court, which, from defect of jurisdiction, was unable to entertain it.