JATENDRAKUMAR DAS Vs. MAHENDRACHANDRA BANIKYA

JUDGEMENT

(1.) This is an appeal by the decree-holder from the order of the District Judge of Mymensingh, dated 22 February, 1932, reversing the order of the Munsif of Tangail, dated 2 October, 1931. The question of law which falls for determination in this appeal is whether the application of the decree-holder, now appellant, is barred by the statute of limitation. The learned District Judge has answered the question in the affirmative. The Munsif has taken the contrary view. The question in this appeal is which view is right. The relevant facts are not in dispute and may be briefly stated. It appears that the appellant obtained a decree against the respondent in the Munsif's Court at Dacca on 2 August, 1926. That decree was transferred to the Munsif's Court at Tangail for execution. Execution proceedings were started and, on 29 August 1927, they were eventually dismissed by the Tangail Court. On 25 January 1929, the appellant filed another application for execution in the Court of the Munsif at Dacca the application remained, pending in that Court for some time. On 2 March, 1929, the decree, together with the certificate of non-satisfaction, was returned by the Tangail Court to the Dacca Court. The appellant's application for execution, dated 25 January 1929, was registered and an order for issue of notice was passed. Notice was, however, not issued and the execution proceedings were dismissed. The execution proceedings which have led to the present appeal were started on 1 June 1931.

(2.) The learned District Judge has held that, as the appellant's application, dated 25 January 1929, was not made to the proper Court, as the Dacca Court had no jurisdiction on that date to entertain the application, the application could not be regarded as an application made in accordance with law within the meaning of Art. 182(5), Limitation Act, and he relies on a decision of their Lordships of the Judicial Committee of the Privy Council in the case of Maharaja of Bobilli V/s. Narasaraju Peda Simhulu AIR 1916 PC 16 in support of his view. The fact, on which the present case has been sought to be distinguished from the facts of the case before the Judicial Committee-referred to, is that on the date, when the Dacca Court dealt with the application, made on 25 January, it had acquired jurisdiction, as the decree together with the certificate of non-satisfaction had been returned to the Dacca Court by that date. It is said that it is true that the application was made at an earlier date when the Court had no jurisdiction to entertain it, but as it remained on the file of the Dacca Court and no orders were passed Jon it, there is no reason why it should not be regarded as an application which was presented to the proper Court on that date when it was registered. If it is so regarded, the present application for execution, made on 1 June 1931, was within three years from the date of the final order on the application registered after 2 March, 1929, and would be in time. It becomes necessary to examine with care the facts of Maharaja Bobilli's case AIR 1916 PC 16.

(3.) There, the decree was passed by the District Judge in 1904, and the first application for execution of December 1907 was not made to the proper Court which was the Court of the Munsif of Parbatipur, to whom the decree had been transferred, and it was held that could not save limitation, the decree being of 1904,and a second application for execution was made on 27 April 1910. to the Court of the District Judge (which passed the decree), which had already transferred the decree for execution to another Court before the return to the said Court of the copy of the decree and the certificate of non-satisfaction according to the provisions of Section 41, Civil P.C. It was in August 1910, that the copy of the decree and the certificate of non-satisfaction were sent to the District Judge, and it was held in such circumstances that the application of 27 April1910 was not made to the proper Court. Proper Court means the Court whose duty it is to execute the decree: see Expl. 2, Art. 182. It would thus appear that in Maharaja of Bobilli's case AIR 1916 PC 16 the application of December 1907, which was made before the District Judge was held not to have been presented to the proper Court, as the decree had been transferred to the Munsif's Court at Parbatipur and as the decree and certificate of non-satisfaction were not sent to the Court of the District Judge till August 1910, and on the further ground that the Court of the District Judge of Vizagapatam was not the Court which could execute the decree by sale of immovable property outside its jurisdiction. It would seem that the application of 27 April 1910 was held not to be made to the proper Court on the same ground. In the present case, it is true that the application of 25 January 1929 was presented to a Court which had no jurisdiction and it remained pending on the file of the Court of the District Judge till it acquired jurisdiction. But that was the case also in Maharaja of Bobilli's case AIR 1916 PC 16, and it was held that the application of 27 April 1910 was not made to a proper Court, although the application remained pending in the file of the District Judge, till it acquired jurisdiction by the return of the decree and the certificate of non-satisfaction from the transferee Court and yet the District Judge hold that the application was not made to the proper Court, and the Judicial Committee agreed in this view. Their Lordships said: Further their Lordships agree with the District Judge that the application of 27 April, 1910 was not made to the proper Court.