MUTHU RAMA REDDI Vs. MOTILAL DAGA, TRADING UNDER NAME AND STYLE OF SAIT BALAKISANDAS MOTILAL

JUDGEMENT

(1.) This appeal arises out of an application for transmission of the decree in O.S. No. 72 of 1922 on the file of the Subordinate Judge of Cocanada for execution to the District Court of South Arcot and the questions for determination are (1) whether the application is barred by limitation against the appellant (defendant 3) and (2) whether the decree is executable against him. Respondent 1 is the decree-holder and the suit was for recovery of Rs. 28,374- 11-9 due under two promissory notes executed by the appellant and respondents 2 and 3. The appellant pleaded that he was a surety and the suit was decreed on 19 February 1923 as follows: It is ordered and decreed that the plaintiff (respondent 1) do proceed against defendants 1 and 2 (respondents 2 and 3) in the first instance and against defendant 3 (appellant) in case the amount cannot be releted from defendants 1 and 2 and do recover Rs. 26,777-4-9 with further interest and proportionate coats.

(2.) A sum of Rs. 3,652-4-1 was realised by 1926 by executing the decree against respondents 2 and 3, and two applications were filed by the decree-holder on 18 January 1927 for transmission of the decree to the District Munsifs of Kovvur and Rajahmundry for simultaneous execution against respondents 2 and 3. The applications were ordered on 20 January 1927 and decree copies were transmitted to the District Munsifs of Kovvur and Rajahmundry. No steps were however taken at Kovvur or Rajahmundry and an application for transmission of the decree to the Sub-Court of Vizagapatam for execution against respondents 2 and 3 was filed in the Sub-Court of Cocanada on 20 January 1930 (18 and 19 January being holidays). It was alleged in the petition that the decree copies transmitted to the District Munsifs of Kovvur and Rajahmundry had been returned, though in fact only the decree copy sent to the District Munsif of Kovvur had been returned, and the application was defective in other respects as well. So it was returned on 23 January 1930 for amendment, and the decree holder applied for and obtained time for that purpose on several occasions. The application was returned for the last time on 9 October 1930 and it was not represented thereafter. The application out of which this appeal arises was filed on 27 September 1932 for transmission of the decree to the District Court of South Arcot for execution against the appellant and respondents 2 and 3, and the latter did not appear. It was not alleged in the application that the decree amount cannot be realised from respondents 2 and 3 and the appellant pleaded that the decree cannot be executed against him until then. Even otherwise he contended that the application of 20 January 1930 was not made to the proper Court and cannot save limitation, but the Subordinate Judge overruled the plea of limitation on the ground that the present application was filed within three years of the prior application. The contention that the prior application was not made to the proper Court and cannot save limitation was not considered, and though evidence was not led, and there is nothing on record to show that the decree amount cannot be realised from respondents 2 and 3, the Subordinate Judge negatived the other plea on the ground that the decree does not say that the decree-holder should exhaust the properties of respondents 2 and 3 before proceeding against the appellant, and that the time for executing the decree against the appellant had arisen in 1932 when the decree, holder was obliged to take out the execution against him.

(3.) Hence this appeal and it was argued first, that assuming the decree to be executable against the appellant, the application of 20 January 1930 cannot prevent time from running and the present application was barred by limitation against him. Art. 182, Clause 5, Limitation Act, which was relied upon by the decree-holder, allows three years from the date of the final order on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree, and it was contended on behalf of the appellant that the application of 20 January 1930 was not even made to the proper Court within the meaning of that clause. Proper Court , according to Expln. 2 to Article 182, means the Court whose duty it is to execute the decree, and it was urged that once the decree is transmitted to another Court for execution, that Court alone can execute it and the Court which passed the decree is not competent to entertain an application for transmission or execution, until the decree is returned to it with a certificate of non-satisfaction. This contention was not dealt with by the Subordinate Judge, though it was pressed before him and a finding had to be called for as to whether the decrees transmitted to the District Munsifs of Kovvur and Rajahmundry had been returned to the Subordinate Judge of Cocanada by 20 January 1930. It is now agreed that, as found by the Subordinate Judge, only the decree copy sent to the District Munsif of Kovvur had been returned, and the question is whether by reason of the non-return of the decree copy by the other Court, the Sub-Court of Cocanada was not competent to entertain an application for transmission of the decree to the District Court of South Arcot. This question was decided in Mahadum Beg V/s. Muhammad Meera Sahib in which all the previous decisions were considered and we see no reason for dissenting from the view taken therein that in such cases the Court which passed the decree is competent to transfer the decree to a third Court for execution. To the same effect are the decisions in K.K. Deb v. N.L. Chowdury A.I.R. 1927 Rang 258 and Kanti Narain V/s. Madan Gopal A.I.R. 1935 Lab 465 and an examination of the relevant provisions of the Civil Procedure Code leads to the same result.