HIGH COURT OF PATNA
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Reuben, J. -
(1.) This appeal is by the decree-holders. The facts are stated in my judgment in -- 'Radheshyam v. Devendra', AIR 1952 Pat 213 (P. B.) (A). The decree under execution was passed on 13-8-1934, by the Additional Civil Judge, Banaras. It was transferred for execution to the Subordinate Judge, 1st Court, Chapra. The first execution in that Court was filed in 1936 and was dismissed in 1940. A second execution petition in that Court was filed in 1941 and dismissed the same year. On 23-3-1944, within three years of the dismissal of the second execution petition, the decree-holders filed an application in the Court of the Additional Civil Judge, Banaras, which is described as an execution petition. This petition was dismissed on 3-11-1944, one of the grounds of dismissal being the failure of the decree-holder! to produce a certificate under Section 41, Civil P. C., from the Chapra Court. The decree-holders then applied on 30-7-1946, to the Banaras Court and got the decree again transferred for execution to the Chapra Court. The present appeal arises out of the execution case filed on 12-8-1946 in the Chapra Court which has been dismissed by the Subordinate Judge as barred by limitation. It is obvious that limitation will be saved if the application in Banaras Court filed on 23-3-1944 can be taken to be a step-in-aid of execution, that is to say, an application in accordance with law filed in the proper Court.
(2.) In the decision of the Full Bench -- 'AIR 1952 Pat 213 (FB) (A) it was held that the Banaras Court by transferring the decree for execution did not divest itself completely of the power to entertain a petition for the execution of the decree, and the Full Bench explained that the question whether the execution petition in question was one filed to the proper Court was dependent on whether the relief asked for was within the jurisdiction of the Banaras Court to grant. This is a question partly of law and partly of fact & could not be decided by the Full Bench. Nor was the Full Bench in a position to decide the point as the petition in question was not before it. Unfortunately, this Bench finds itself exactly in the same position as the Full Bench, namely, that the one document which is necessary for deciding whether the relief asked for was within the powers of the Banaras court is not before it. Neither the petition of the 23-3-1944, nor a copy of it has been produced. Nor have we been given any explanation why they have not been produced before us. It has been urged that from the order-sheet (Ext. 1) of the proceeding in the Banaras Court this Court should, under the provisions of Section 114, Evidence Act, presume that the relief asked for was within the jurisdiction of the Banaras Court to grant. The order-sheet shows that on 23-8-1944 the application was directed to be put up with office report. On the 25th August, the office reported that there was wrong entry in column 6. An amendment was made accordingly and the case came up before the Court on 7th September when the following order was passed: "Today the execution petition along with the office report was put up. It is ordered that the execution petition be registered." The argument is that when the Court directed that the petition be registered, the presumption prima facie is that the relief asked for was within the Court's jurisdiction. The answer to the argument is that the order-sheet does not show that the Court applied its mind to the question. The scrutiny of the petition was made by the office and the Court dealt only with the one defect which was reported by it. As regards other possible defects in the application, the matter was left open. For instance, if an objection as to the Court's jurisdiction to entertain the application had been raised by the judgment-debtor subsequently, it would have been open to the court to consider and accept the contention.
(3.) Secondly, it has been contended that the application should be treated as step-in-aid of execution as it involved a prayer for substitution in place of a deceased decree-holder of his legal representatives. The order-sheet to which I have referred shows that there was some application made for substitution, but it is not at all clear whether it related to substitution in place of a decree-holder or a judgment-debtor. Accepting the contention that it was for the substitution of the legal representatives of a deceased decree-holder, I do not think that the prayer for substitution can be treated as step-in-aid of execution so as to save limitation. The provisions of Order 22, Civil P. C. do not apply to proceedings in execution and there is no provision of law under which a petition which is purely a petition for the substitution of legal representatives in place of a deceased decree-holder can be entertained. Such an application, therefore, would not come within the description of & petition filed in accordance with law.;
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