The authority of a Second Officer to receive execution petitions in the absence of the Sub-divisional Officer-Subordinate Judge, and the appropriation of payments towards instalments in order of time.

Misra, J.

1. This appeal by the judgment-debtors arises out of a miscellaneous case started at their instance. The decree-holders respondents levied execution in respect of the balance left unpaid under an instalment decree for a sum of Rs. 17,950/-, passest in their favour in the Court of the learned Sub-ordinate Judge, Deoghar, on foot of a petition of compromise dated 19-8-1937. The amount decreed was to be paid in Six instalments the details where-of were duly set out in the petition of compromise.

It was stated in the petition for execution filed by the decree-holders that the original judgment-debtor, Bara Kumar Bhaiya Jagdish Pd. Singh, paid up the instalments in due course leaving a balance of Rs. 4,758/- only when he died. The decree-holders, accordingly, had to take out execution for realisation of the above amount against his heirs. This gave rise to Execution Case No. 11 of 1944. The judgment-debtors objected to the execution on the ground of limitation, which led to the miscellaneous case out of which this appeal has arisen. The learned Subordinate Judge overruled the objection of the judgment-debtors, who have come up in appeal to this Court.

2. Learned counsel for the appellants contended that the learned Subordinate Judge should have held that the execution of the decree was barred by limitation when the petition for execution was filed. It is not denied that it was filed on 14-4-1944, and it was received by the Second Officer, Deoghar, and his endorsement thereon is marked Ex. A.

The proper Court where the petition for execution should, however, have been filed was the Court of the Sub-divisional Officer, Deoghar, who is vested with the powers of a Subordinate Judge, in so far as the district of Santhal Parganas is concerned, under the Santhal Parganas Justice Regulation, 1893 (5 of 1893). He was out on tour and came back to Deoghar at 10-30 A.M. on 16th of April, after the court-hours, so that the petition was put up before him on 17-4-1944, when he endorsed it as duly presented, vide Ex. B.

The due date for payment of the sixth instalment being 14-4-1941, the execution would be clearly time-barred as being beyond three years from the due date, if the filing of the petition for execution before the Second Officer, Deoghar, on 14-4-1944, is found in law not to be a valid presentation.

Mr. J.C. Sinha contended that the Second Officer not having been vested with the powers of a Subordinate Judge, the proper course for the decree-holders was to file the petition before the District Judge of Santhal Parganas, if the Sub-divisional Officer-Subordinate Judge was not available at Deoghar. He was the only Court empowered to exercise the jurisdiction of a Subordinate Judge and as such in his absence the decree-holders should have filed the execution petition in the Court of the District Judge in order to save limitation. The decree-holders having failed to present their petition for execution in proper Court in time, the mere fact that it was put on 17-4-1944, should not have been held to be a proper presentation so as to save the bar of limitation. He referred in this connection to the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887), Sections 10, 11 (4) and 14. Sec.10 deals with the temporary charge of District Court by an officer in the event of death, resignation or removal of the District Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held.

The officer whose absence from the station is relevant for the decision of the present case is not a District Judge, and as such it is unnecessary to refer to this section. Sec.11 deals with a similar contingency in the matter of a Subordinate Judge, and as such is relevant for the present case. Clause (1) of Sec.11 runs thus: "In the event of the death, resignation or removal of a Subordinate Judge, or of his being incapacitated by illness or otherwise