Satyanarayana Raju, J. -
(1.)C. M. A. No. 256 of 1951: The decree-holder has preferred this Civil Miscellaneous Appeal against the order of the District Court of East Godavari at Rajahmundry, rejecting an unregistered execution petition filed by him in that Court. The facts which have given rise to this appeal may be briefly stated. In S. A. No. 1603 of 1931 on the file of the High Court of Madras, which arose out of the decree in A. S. No. 104 of 1929 on the file of the District Court of East .Godavari, at Rajahmundry, which itself was filed against the decree of the Subordinate Judge's Court, Rajahmundry, in O. S. No. 78 of 1924, the High Court passed a decree in favour of the present appellant and others on the 18th of February 1938. On the 9th of January 1950, the appellant applied in E. A, No. 81 of 1950 on the file of the Subordinate Judge's Court, Rajahmudry, for transfer of that decree to the District Court, Rajahmundry, for execution. While that application for transfer was pending on the file of the Subordinate Judge's court, Rajahmundry, the appellant presented an execution petition on the 20th of February 1950 in the District Court, Rajahmundry, praying inter alia for execution of the decree. In the note added at the end of the execution petition, the appellant stated that the decree was barred by the twelve years' limitation by the 18th and 19th of February, 1950, but as the 18th and 19th were public holidays, the petition was filed on the 20th of February, the next working day, and therefore, it was not barred by limitation. In column 6 of the execution petition the fact that E. A. No. 81 of 1950 was filed on 9-1-1950 in the Subordinate Judge's Court, Rajahmundry, and that the same is pending, was noted. On the 1st of August 1950, the learned District Judge made an order on the unregistered execution petition rejecting the same. The order mentions that it was stated by the Counsel for the. decree-holder that the court, which passed the decree, had not yet ordered the decree to be transmitted for execution by the District Court and that therefore the District Court had no jurisdiction to entertain the execution petition. This order is the subjectmatter of the above appeal.
(2.)The respondents not having been represented, Srimathi K. Amareswari appeared as amicus curiae and assisted the court. E. A. No. 81 of 1950, which was filed before the Subordinate Judge's Court for transmission of the decree for execution by the District Court was ordered on the 24th of August 1950. Here, it may be stated that the application filed before the Subordinate Judge's Court, Rajahmundry, did not contain any prayer for execution of the decree. Counsel for the appellant admitted before us that it was so and that it only contained a prayer for transmission of the decree to the District Court for execution. The period of limitation under Sec. 48 of the Code of Civil Procedure within which a decree may be executed is twelve years from the date of the decree sought to be executed. An application to transfer a decree to another court for execution is not an application for execution within the meaning of Sec. 48. Such an application, though made within 12 years from the date of the decree, will not entitle the decree-holder to execute the decree if the application for execution to the court to which the decree is transferred, is made after the expiration of twelve years. In the present case, the Subordinate Judge's court, Rajahmundry, made an order transmitting the decree to the District Court, Rajahmundry, as prayed for, on the 24th of August 1950, which is clearly beyond twelve years from the 18th of February 1938, when the High Court of Madras passed the decree. Mr. Poornayya, Counsel appearing for the appellant, contended before us that O. S. No. 78 of 1924 was originally filed in the District Court and it was transferred to the Subordinate Judge's Court, Rajahmundry, only for purposes of trial and decision, and that being so, the Subordinate Judge's Court became functus officio after the disposal of the suit, and it was the District Court, Rajahmundry, having territorial jurisdiction over the subject matter of the suit, and not the Subordinate Judge's Court, that could execute the decree, and the application for execution having been filed on the 20th of February 1950 in the District Court, the application should not have been rejected. In support of this contention he relied upon section 37 (b) of the Code of the Civil Procedure. Section 37 defines that the expression 'Court which passed a decree shall be deemed to include (a) " Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance, and (b) where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit." The Subordinate Judge's Court, Rajahmundry, which is the court of first instance entitled to execute the decree, has certainly not ceased to exist nor can it be said that it ceased to have jurisdiction to execute its own decree. The decree to be executed was passed by the High Court of Madras in Second Appeal and the proper court to execute the decree of the High Court is the court of first instance. The District Court of Rajahmundry is not the court of first instance entitled to execute the decree. If so much is conceded, it follows that the District Court had no jurisdiction to execute the decree without the decree being transmitted. In Venkatasami Naik v. Sivanu Mudali relied on by Srimathi Amareswari the facts were these : A mortgage suit was instituted in the District Munsif's Court of Srivilliputtur. It was transferred for trial to the District Munsif's Court of Tinnevelly which had no territorial jurisdiction in respect of the hypotheca in the suit, and a decree for sale was passed by the latter court. Subsequently a part of the territorial jurisdiction of the court of Srivilliputtur including that in respect of the hypotheca was transferred to the District Munsif's court of Kovilpatti. The decree-holder applied to the court of Kovilapatti for execution of the decree by sale of the property. An objection was taken to the jurisdiction of the court of Kovilpatti to execute the decree. A Division Bench of the Madras High Court consisting of Ayling and Krishnan JJ. held that the District Munsif's court of Kovilpatti had no jurisdiction to execute the decree unless and until the decree-holder got the decree transferred to it for execution. The first contention on behalf of the appellant, therefore, cannot be accepted.
(3.)Learned Counsel for the appellant then contended that the order of the Subordinate Judge's court dated 24-8-1950 transmitting the decree for execution to the District Court relates back to 9-1-1950, the date on which E. A. No. 81 of 1950, the application for transmission of the decree was filed in that court. In support of this contention, Counsel relied upon the decision in the South Indian Industrials, Ltd. v. Narasimha Row . In that case an application was filed by the plaintiff in the original court to add a person as a defendant in a pending suit. This application was originally granted but was subsequently dismissed on review by that court. The plaintiff filed a revision petition against the order passed on review, and the High Court directed that the party be added as a defendant to the suit without prejudice to any defence of limitation being raised by him in the trial of the suit. Kumaraswami Sastri and Reilly, J J. held that the order of the court adding the party as a defendant, should, for purposes of limitation, be deemed to have taken effect, not merely on the date when it should have been made by the lower court if it had taken a correct view of the position, but on the date when the plaintiff's application was presented to the trial court, and that the suit was not therefore barred. The following passage from that decision has been strongly relied upon by the appellant's Counsel:
" It appears to me to be obviously the right principle to adopt in the matter, as otherwise, though an applicatton might be made in time, as in this case, by the dilatoriness of the court, or by the manoeuvres of the opposite party or by a mistaken decision of the court, which had to be put right on appeal or revision, the order to which the party applying was entitled might not be made until the suit had becom time-barred, and it would be unreasonable to leave the party who had applied in good time at the mercy of such chances It is contrary to one of the clear principles of the Law of limitation that a diligent party who has come to court with his suit or his application within the period prescribed should be defeated because the court for some reason cannot or does not give him his relief within that period. The heavy penalty for exceeding the arbitrary periods of limitation is to be counter-balanced by the assurance of safety when within them."