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 dec