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HIGH COURT OF ANDHRA PRADESH
K.SUBBA RAO,JAGANMOHAN REDDY, JJ.
Rampalli Ramachandrudu
Versus
Bakraj Gulab Chand Firmby Gulabchand
A. A. O. Nos. 95 and 642 of 1953 against orders of Dist. J., East Gadavari at Rajahmundry and respectively.
Decided On : 06-02-1957
EXECUTION OF DECREE - RETRANSMISSION OF DECREE - LIMITATION - STEP-IN-AID - JOINT DECREE-HOLDERS - APPLICATION BY ONE DECREE-HOLDER - MAINTAINABILITY - JURISDICTION OF COURT TO DIRECT EXECUTION.
Fact of the Case:
The decree-holder filed an execution petition in the District Munsif's Court, Kovvur, which was transmitted to the District Court, Rajahmundry, for execution. After the decree was amended under the Madras Agriculturists Relief Act, the decree-holder filed a petition for retransmission of the decree to the District Court, Rajahmundry, which was allowed. The judgment-debtor objected to the maintainability of the execution petition on the grounds that the decree was not properly retransmitted, that the execution petition was barred by limitation, that only one of the decree-holders had applied for execution without written authority from the others, and that the District Judge had no concurrent jurisdiction to direct execution.
Finding of the Court:
The Court held that the decree was duly and properly retransmitted to the District Court, Rajahmundry, and that the District Court had jurisdiction to entertain the execution application. The Court also held that the execution application was not barred by limitation, as the order of retransmission was a step-in-aid of execution within the meaning of Article 182 of the Limitation Act. The Court further held that the objection that only one of the decree-holders had applied for execution without written authority from the others was not maintainable by the judgment-debtor, as the decree-holders, for whose benefit the provision was made, did not raise any objection to the maintainability of the application. Finally, the Court held that the question of whether the District Judge had concurrent jurisdiction to direct execution did not arise for consideration, as the execution proceedings were not pending in the Kovvur Munsif's Court after the order of re-transmission.
Issues: 1. Whether the decree was properly retransmitted to the District Court, Rajahmundry? 2. Whether the execution application was barred by limitation? 3. Whether the application for execution by one decree-holder without written authority from the others was maintainable? 4. Whether the District Judge had concurrent jurisdiction to direct execution?
Ratio Decidendi: 1. The Court held that the decree was duly and properly retransmitted to the District Court, Rajahmundry, as the District Munsif's Court, Kovvur, had followed the procedure prescribed by Section 41 of the Civil Procedure Code and had sent a certificate of non-satisfaction along with the decree. 2. The Court held that the execution application was not barred by limitation, as the order of retransmission was a step-in-aid of execution within the meaning of Article 182 of the Limitation Act. 3. The Court held that the objection that only one of the decree-holders had applied for execution without written authority from the others was not maintainable by the judgment-debtor, as the decree-holders, for whose benefit the provision was made, did not raise any objection to the maintainability of the application. 4. The Court held that the question of whether the District Judge had concurrent jurisdiction to direct execution did not arise for consideration, as the execution proceedings were not pending in the Kovvur Munsif's Court after the order of re-transmission.
Final Decision: The Court dismissed both the appeals filed by the judgment-debtor.
K. SUBBA RAO, C.J. : -
These two civil miscellaneous appeals arise out of two orders made by the District Judge in E. P. No. 21 of 1948 and both the appeals raise the same questions namely, whether the Execution Petition was maintainable and whether it was barred by limitation.
2. The facts relevant may be briefly stated. On 8-3-1936, the respondents obtained a decree in O. S. No. 18 of 1934 against the appellant for money. On 19-11-1936, the decree-holders filed E. A. No. 301 of 1936 on the file of the Court of the District Judge for transmission of the decree for execution to the District Munsifs Court, Kovvur. Thereafter the decree-holders filed E. P. No. 596 of 1936 on the file of the Court of the District Munsif, Kovvur, on 6-12-1936, for recovering the amount by the sale of the properties belonging to the judgment-debtor.
The judgment-debtor filed an application for amendment of the decree under the provisions of the Madras Agriculturists Relief Act and the decree was amended on 29-11-1944. There was an appeal against that order to the High Court and the High Court confirmed the order of the District Munsif on 8-3-1946. Meanwhile, one of the decree-holders died and it became necessary to bring his legal representatives on record. The decree-holders filed a petition on 1-2-1948, in the District Munsifs Court, Kovvur, for retransmitting the record to the District Court, Rajahmundry, with non-satisfaction certificate under Section 39, Civil Procedure Code. A note was appended to that petition as follows :
"Plaintiff will take action after the L. Rs. added and the decree retransmitted here. E. P. No. 596 of 1936 will be open and continue."
3. The District Munsif ordered transmission on 5-2-1948. The order runs :
"Ordered that a copy of this order be sent to the District Court, Rajahmundry, with a copy of the decree and of any order which may have been made for execution of the same and a certificate of non-satisfaction."
4. A certificate of non-satisfaction was issued and the record was duly sent to the District Court, Rajahmundry, which received it on 16-2-1948. The order did not state expressly or by necessary implication, that the execution application filed in that Court would be pending till the decree transmitted to the District Court was retransmitted to the Kovvur District Munsifs Court. After the records were received by the District Court, the present E. P. No. 21 of 1948 was filed in the District Court on 9-2-1948.
The learned Judge, on 25-2-1953, at the instance of the judgment-debtor made an order which for convenience may be called an interim order transmitting the decree to the Tanuku District Munsifs Court reserving the decision on other questions raised by the judgment-debtor for future consideration. On 20-7-1953, after hearing the objections raised by the judgment-debtor to the maintainability of the application, the learned District Judge held that the application was maintainable and that it was in time.
As by the earlier order, he had directed transmission of the decree to the Tanuku District Munsifs Court for execution and nothing further was required to be done in the District Court, he directed the Execution petition to be closed. C. M. A. No. 642 of 1953 was filed against the final order and C. M. A. No. 95 of 1953 was preferred against the earlier order.
5. Learned counsel Mr. Balaparameswari Rao has reiterated the arguments raised on behalf of the judgment-debtor in the Court below without any success. We shall, therefore, proceed to consider his arguments seriatim.
6. It is contended that there was no retransmission of the decree by the Kovvur District Munsifs Court to the District Court, Rajahmundry, in accordance with law and, therefore, the District Court had no jurisdiction to entertain the application. Reliance is placed upon the decisions of two Division Benches of the Madras High Court, one in Nagireddi v. Kotamma, 1947-1 Mad LJ 156 : (AIR 1947 Mad 431) (A), and the other in Nagappa Ch
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