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1916 Supreme(SC) 48
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER L.C., LORD ATKINSON, AND SIR JOHN EDGE.
MAHARAJAH OF BOBBILI - Appellant
Versus
NARASARAJU PEDA SRINHULU - Respondents
On Appeal From The High Court at Madras.
Decided On : July. 14. 1916.
Solicitor for appellant: Douglas Grant.
When a decree is transferred to a lower court for execution, that lower court is the "proper court." Applications for execution made to the transferring court while the decree is with the transferee court do not stop the limitation period from running.
Headnote:(A) Indian Limitation Act, 1908 - Schedule I, Article 182 - Code of Civil Procedure, 1882 - Sections 223, 224, 228, and 230 - Execution of decree - "Proper Court" - Where a decree is sent to a lower court for execution under the Code of Civil Procedure, the lower court is the proper court to which applications for execution should be made, as it is the court whose duty it is to execute the decree so far as it can be executed by that court.
(B) Limitation - Application to the wrong court - An application for execution made to the transferring court while the decree is still with the transferee court is not an application made to the "proper court" within the meaning of the Limitation Act and does not prevent the period of limitation from running.
Facts of the case:
A money decree was obtained in a district court and subsequently transferred to a munsif's court for execution against property located within the munsif's jurisdiction. The munsif's court attached the immovable property. While the decree remained with the munsif's court, the decree-holder applied to the district court for the sale of the attached property and for the issuance of notice. Later, after the decree had been returned to the district court with a certificate of non-satisfaction, another application for execution by sale of the property was presented to the district court. The district court dismissed the latter application as being time-barred, holding that the previous application to the district court was not made to the "proper court."
Findings of Court:
The court found that since the decree had been sent to the munsif's court for execution and the property was within that court's local limits, the munsif's court was the proper court for the application to sell the attached property. Consequently, the application made to the district court did not stop the limitation period from running, and the subsequent application was time-barred under Article 182 of the First Schedule of the Indian Limitation Act, 1908.
Issues: Whether an application for execution made to the transferring court while the decree is with the transferee court constitutes an application to the "proper court" under Article 182 of the Limitation Act, and whether the subsequent application was barred by limitation.
Ratio Decidendi: When a decree is transferred for execution under the Code of Civil Procedure, the transferee court is the proper court for execution proceedings regarding property within its jurisdiction. An application made to the original transferring court during this period is not an application to the "proper court" and therefore does not interrupt the limitation period.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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execution of decrees
- jurisdiction of executing court
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limitation
- proper court for execution
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execution of decrees
Judgement
Appeal from a decree of the High Court (May 2, 1912) affirming an order of the District Judge of Vizagapatam.
The appellant on April 5, 1904, obtained a money decree against the respondents in the Court of the District Judge. In September, 1904, the decree was sent upon his petition and under s. 223 of the Code of Civil Procedure, 1882, to the Court of a Munsif for execution against property within the jurisdiction of that Court; it remained unexecuted in that Court until August, 1910. In January, 1908, the appellant petitioned the District Court for execution of the decree and that notice under s. 248 of the Code of Civil Procedure, 1882, might be issued to the respondents, but this petition was not proceeded with. On April 27, 1910, he made the present application to the District Judge for execution of the decree by the sale of property which had been attached by the Court of the Munsif.
The District Judge held that the application of January, 1908, was not made to the " proper Court " within the Limitation Act, 1908, Sched. I, art. 182 (5.), and that the three years period of limitation provided by that Article consequently ran from the date of the decree and that the application was barred; he also held that the present application was made to the wrong Court.
The High Court affirmed the decision. The learned judges (Sankaran Nair and Ayling JJ.) said that although concurrent execution of a decree was possible, it could be carried out only under an order permitting it; the Munsif s Court had seisin of the execu tion proceedings, and there was no order of the District Court staying execution proceedings in the Munsif s Court.
1916. June 23. De Gruyther, K.C., and Dube, for the appellant. The District Judge was not deprived of jurisdiction over the decree by sending it to the Munsifs Court for execution Baij Nath Goenka v. Holloway . (( 1905) 1 Calc. L. J. 315.) The application of January, 1908, was made to the " proper Court " within the meaning of art. 182. The District Judge could have made an order under s. 248 of the Civil Procedure Code, which was a " step in aid of execution." The question is not whether that application was irregular, but whether the District Judge had jurisdiction.
The respondents did not appear.
July 14. The judgment of their Lordships was delivered by
SIR JOHN EDGE. This is an appeal from a decree, dated May 2, 1912, of the High Court at Madras, which affirmed an order dated October 25, 1910, of the District Judge of Vizagapatam dismissing an application of April 27, 1910, for the execution of a decree of April 5, 1904, on the ground that the application was time-barred when it was made. The question as to whether the application of April 27, 1910, was barred by limitation depends on whether a previous application for the execution of the decree which had been made on December 13, 1907, was made to the proper Court within the meaning of art. 182 of the First Schedule of the Indian Limitation Act, 1908. The period of limitation applicable in this case was three years from the date of applying in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree. The respondents have not appeared and have not been represented in this appeal. The facts, as their Lordships have ascertained them from the papers in the record before them, may be briefly stated.
The appellant on April 5, 1904, obtained a money decree against the respondents in the Court of the District Judge of Vizagapatam. In September, 1904, the appellant presented a petition to the Court of the District Judge by which he prayed that the decree should be sent to the Court of the Munsif of Parvatipur for execution, on the ground that the properties of the respondents were situate within the local limits of the jurisdiction of the Court of the Munsif, and thereupon the District Judge by his order of September 30, 1904, made under s. 223 of the Code of Civil Procedure, 1882, sent the d
