The proper court to execute a decree is the trial court, and an application for payment out made to the appellate court cannot be regarded as having been filed in a "proper court" within the ambit of Article 182 (5) of the Indian Limitation Act.

CHANDRA REDDY, C. J.

( 1 ) THE primary point that falls for decision in this Letters Patent Appeal relates to the scope of Article 182 (5) of the Indian Limitation Act and it arises in the following circumstances :

( 2 ) THE appellant filed a suit in the court of the District Munsif, Tirupathi, for recovery of possession of a vacant site situated in the Tirupati town leased out by his father permanently to the respondent on a rental of Rs. 2. 00 per month on the ground that it did not bind him. Judgment was entered by the trial Court in favour of the appellant on 7-9-1949. An appeal carried by the aggrieved respondent to the appellate Court proved unsuccessful, the date of the appellate Courts decree being 5-12-1950. During the pendency of the appeal, the respondent sought stay of execution of the decree and that was granted on condition that he deposited the costs awarded against him. The respondent deposited the costs on 17-1-1950. The appellant applied for payment out of this amount by means of a cheque on 2-2-1953 and an order for the issue of a cheque was made by the appellate court on 13-2-1953.

( 3 ) THE appellant put into execution the decree in his favour on 27-1-1955. This was resisted by the respondent on the objection that the execution petition was barred by limitation, it not having been filed within three years from the date of the appellate decree. This opposition did not prevail with the executing Court which thought that the application for payment out made by the appellant on 2-2-1953 served as a step-in-aid of execution. The appeal filed by the respondent was allowed by the District Judge, Chittor. The decree-holder brought a civil miscellaneous second appeal to this court. Ranganadham Chetty J. who heard the appeal, accepted it as respects the decree for costs but dismissed it in so far as it related to the decree for possession of the immovable property. However, the learned Judge granted leave under clause 15 of the Letters Patent and that is how the matter is now before us.

( 4 ) IN this appeal, we are called upon to decide whether the petition by the appellant-decree-holder filed in the Court of the Subordinate Judge for the issue of a cheque in 1953 could be regarded as having been filed in a "proper court" within the ambit of Article 182 (5) of the Indian Limitation Act.

( 5 ) AS the solution of the problem that poses itself in this enquiry depends upon the construction, to be placed on Article 182, it is useful to quote it here in so far as it has a bearing on this appeal. That Article is in these words : X X X The expression "proper court has been explained in Explanation II to mean, the Court whose duty it is to execute the decree or order, Ranganadham Chetty J. thought that the appellate Court had no jurisdiction to entertain a petition either for execution or to take some step in aid of execution of the decree and, therefore, the decree in so far as it concerned the immovable property is not saved by this Article.

( 6 ) THIS opinion of our learned brother is assailed by Sri Narasinga Rao, learned counsel for the appellant, on the contention that the relevant provisions of the Civil Procedure Code have conferred Jurisdiction on an appellate Court and it was quite, competent for the decree-holder to maintain an execution petition in the Subordinate Judges Court which disposed of the appeal. This argument is founded on Sections 37 and 38 of the Code of Civil Procedure.

( 7 ) IN our opinion, the appellant cannot draw any support from these two sections. Section 37 postulates :"the expression "court which passed a decree" or words to that effect, shall in relation to the execution of decrees, unless there is anything repugnant in the subject or context, 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 C

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