Broomfield J. - (1.)THIS is an appeal in execution proceedings which raises an interesting point of limitation.
(2.)THE respondent obtained a decree against the appellants in a suit for sale on a mortgage for Rs. 54,000 and odd. THE suit was filed in the Court of the Additional District Judge of Akola. THE preliminary decree was made on September 30, 1926, and the final decree on July 2, 1927. As the mortgaged property was in the jurisdiction of the First Class Subordinate Judge of East Khandesh, the respondent applied in October, 1927, for transfer of the decree to that Court. An order of transfer was made on December 22, 1927, and the documents required by Order XXI, Rule (5, i.e. a copy of the decree and certificate of non-satisfaction, were sent to the Court at Jalgaon on September 3, 1928. A darkhast was filed to recover the amount of the decree by sale of the property, but there were no bidders and on that ground the darkhast was disposed of on March 22, 1933.
On May 12, 1934, the decree was attached at the instance of Banabai, the mother of the respondent, who had obtained a decree for Rs. 2,100 against him in the Court of the First Class Subordinate Judge of Akola. On December 4, 1935, the respondent made an application to the Akola District Court for a fresh certificate and order of transfer. The application referred to the previous transfer order and to the fact that the darkhast had been disposed of by the Jalgaon Court on March 22, 1933. The reason for applying for a fresh order was not stated in the application and the attachment of the decree was not mentioned. But the attachment was reported by the Court's execution clerk and the respondent's application was at first refused. However a notice appears to have been issued to the attaching creditor Banabai and her pleader appeared) and stated that she was not in a position to execute her decree as the matter was in the hands of the Collector and she had no objection to the respondent's decree being executed provided that the money realised was applied towards satisfaction of her decree. Ultimately on March 10, 1936, an order re-transferring the decree to the Jalgaon Court was made.

Another darkhast was filed in that Court on April 25, 1936, which was disposed of on August 18, 1936, as process fees were not paid. On December 18, 1936, there was another darkhast, which was withdrawn on November 15, 1938. Finally on December 22, 1938, the respondent filed the darkhast No.10 of 1939 which has given rise to this appeal. The judgment-debtors pleaded that the darkhast was barred by limitation. That plea was negatived by the trial Court which ordered execution to proceed and the judgment-debtors have come in appeal to this Court.

(3.)THE question whether the darkhast is barred by limitation depends on whether the application of December 4, 1935, which the respondent made to the Akola Court was an application in accordance with law to the proper Court to take a step-in-aid of execution within the meaning of Article 182 of the Indian Limitation Act. THE gist of the argument for the appellant is that as the Akola Court had transferred the decree for execution to the Jalgaon Court and the latter Court had not returned the papers with a certificate under Section 41 of the Civil Procedure Code, the former Court had no jurisdiction to order re-transfer to the Jalgaon Court, and therefore the application made to the Akola Court was not made to the proper Court and could not save limitation.
It is admitted that there is nothing in the relevant provisions of the Code, Sections 38, 39, 41 and 42, which supports this argument either expressly or by necessary implication. Mr. Dixit relies on the case law and has cited first of all Maharajah of Babbili v. Narasaraju Peda Srinhulu (1916) L.R. 43 I.A. 238, S.C. 18 Bom. L.R. 909, on appeal from (1912) I.L.R. 37 Mad. 231. There a decree had been made by the Court at Vizagapatam which sent it for execution to the Court at Parvatipur. The latter Court attached certain properties and then dismissed the execution application made to it. Subsequently two applications were made to the Court at Vizagapatam for sale of the properties attached by the Court at Parvatipur. It was held that these applications were not made to the proper Court. The Madras High Court in its judgment expressed the view that although there may be concurrent execution of a decree, that should only be allowed in exceptional circumstances. There ought to be an order of the Court which passed the decree allowing such execution. In the case before them no such order had been made. The only application to the Court which had passed the decree was one for execution which it was held could only be made to the transferee Court. This decision was affirmed by the Privy Council. But it is clear from the judgment of their Lordships that they were influenced by the fact that the application was for sale of property attached by the transferee Court and not in the jurisdiction of the Court which passed the decree. Sir John Edge said (page 242):- As the decree of April 5, 1904, had by order of the Court of the District Judge been sent on September 30, 1904, to the Court of the Munsif of Parvatipur for execution by the latter Court, and as the copy of the decree with the non-satisfaction certificate was not returned to the Court of the District Judge until August 3, 1910, and as the petition of December 13, 1907, was for execution of the decree by sale of the immoveable property of the respondents which was within the local limits of the jurisdiction of the Munsif's Court, their Lordships, having regard particularly to Sections 223, 224, 228, and 230 of the Code of Civil Procedure, 1882, (corresponding to Sections 38, 39, 41 and Order XXI, Rule 10, of the present Code), are satisfied that when that petition of December 13, 1907, was presented to the Court of the District Judge that Court was not the proper Court to which the application to execute the decree by sale of immoveable property which had been attached by the Court of the Munsif should have been made,...