SARKAR - (1.) JUDGMENT of S. K. Das and Sarkar JJ. was delivered by
(2.) THIS appeal arises out of an application for execution of a decree for money and the only question is whether the application was made within the time prescribed by the Limitation Act. The decree was passed in favour of one Venkatachalam Chettiar on 9/05/1935, against the appellants and certain other persons. On 3/02/1936, Venkatachalam Chettiar transferred the decree to his mother, Meenakshi Achi, by an assignment in writing never having tried to execute it himself,. Soon thereafter, namely, on 26/03/1936, a creditor of Venkatachalam Chettiar presented a petition under the Provincial Insolvency Act (hereinafter referred to as the Act) for adjudicating him an insolvent on the ground that the transfer of the decree to Meenakshi Achi was a fraudulent preference and as such an act of insolvency. This petition remained pending for a considerable time and ultimately on 7/01/1939, an order was made on it adjudicating Venkatachalam Chettiar an insolvent. By that order respondent No. 1, the Official Receiver of Ramanathapuram, was appointed the receiver in insolvency and the insolvent's estate vested in him. This order was based on the finding that the transfer of the decree by Venkatachalam Chettiar to Meenakshi Achi was a fraudulent preference and an act of insolvency. On 26/01/1942, the receiver made an application in the insolvency proceedings for an order annulling the transfer of the decree by the insolvent to Meenakshi Achi and on this application an order was made on 9/04/1943, under s. 54 of the Act annulling that transfer. In the meantime, Meenakshi Achi had made two applications for execution of the decree as the assignee of -it and a reference to them is necessary. The first of these applications was made on 14/12/1936, for an order recognising her as the assignee of the decree and for its execution against some of the judgment-debtors. This application was disposed of by an order made on 27/09/1937, recognising her right to execute the decree as the assignee and directing a certain compromise made presumably with the judgment debtors concerned, to be recorded. The terms of this compromise are not relevant for the purpose of the appeal. Thereafter, on 2/08/1940, Meenakshi Achi as the assignee of the decree made another application for its execution and this application was disposed of by an order made on 30/09/1940, dismissing it for defaultof prosecution. It will be remembered that it was after these applications and the orders thereon had been made that the order annulling the assignment of the decree to Meenakshi Achi was passed. After the order annulling the transfer of the decree to Meenakshi Achi had been made, the, receiver considering himself then entitled to the decree, made an application for its execution on 27/09/1943. It is this application which has given rise to the present appeal. The executing court dismissed the application as having been made beyond the time prescribed by the Limitation Act. On appeal, the High court at Madras set aside the order of the executing court and held that the application was within time. Some of the judgment-debtors have now come up in appeal to this court. The appeal is contested by the receiver, the respondent No. 1. The other respondents among whom are the remaining judgment-debtors or their successors in interest, have not appeared.
(3.) APPLICATIONS for execution like the present one are governed by art. 182 of the Limitation Act. That article provides a period of three years within which the application must be made. The article prescribes different points of time for different cases from which the period is to commence running. The first point of time so prescribed is the date of the decree. The fifth point of time prescribed is expressed in these words: (Where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper court for execution..... The question for determination is whether the fifth point of time applies to the receiver's application for execution. If it does not, the application must be held to have been made out of time, while if it does, the application would not be barred by limitation. The receiver contends that the two applications by Meenakshi Achi were ' applications made in accordance with law to the proper court for execution' within the meaning of the article and his application was within time as it had been made within three years of the date on which the final order on Meenakshi Achi's last application was made. ;