JUDGMENT:- This appeal by the decreeholder is directed against an order of Shri N.D. Gupta, the then Additional Subordinate Judge Mandi whereby on a preliminary objection raised by the appellant it was held that the Court was competent to go into the question that the execution application was barred by the law of limitation.

2. The appellant had obtained a decree against the judgment-debtor in, the Court of the Senior Subordinate Judge, Mahasu. The aforesaid decree was transferred to the District Judge, Mandi for execution who in due course transferred the case to the Additional Subordinate Judge, Mandi, for disposal.

3. An objection petition under S.47 of Civil Procedure Code was filed by the judgment-debtor and one of the grounds of objection was that the execution application was barred by the law of limitation. On behalf of the appellant a preliminary objection was raised that the transferee Court was not competent to go into the question as to whether the execution application was filed within the prescribed period of limitation or not That objection was overruled by the learned Additional Subordinate Judge and the correctness of that order has been challenged by this appeal.

4. The precise point that has been urged on behalf of the appellant is that the Court which had transferred the decree had recorded a certificate that a sum of Rs.1,500/- had been paid towards the decree and the objection raised by the respondent judgment-debtor that the execution application was barred; by the law of limitation was also based on the ground that no payment was made by him towards the decree and as such the Court which transferred the decree for execution should be deemed to have held that the decree was alive and that the execution application was within the prescribed period of limitation.

I required the learned counsel to read over to me the copy of the objection petition filed by the respondent and he very kindly did so and it appeared that the judgmentdebtor had in one paragraph said that no payment was made by him towards the decree and in another paragraph that the execution of the decree was barred by the law of limitation. The aforesaid two paragraphs were independent of each other and it could not be said with any degree of certainty that the plea in bar was founded on the allegation that no payment was made by the judgment-debtor towards the decree.

5. On behalf of the appellant reliance has been placed upon the following rulings: Paira Mal v. Mehr Chand, AIR 1930 Lah 143, Prayagdas Shankerlal v. Mt. Indirabai, AIR 1948 Nag 189 and Sundara Rao v. Appiah Naidu, AIR 1954 Mys 1 (FB).

6. In the Lahore case referred to above the Court which had passed the decree had prepared a transfer certificate for a part of the decree and the question that was raised in the transferee Court and came up for decision before the High Court was as to whether a transfer certificate could be prepared in respect of a part of the decree. It was held that the executing Court was not justified in refusing to execute a part of the decree as directed in the transfer certificate. The aforesaid case is, therefore, clearly distinguishable from the facts of the instant case in which the question arising for decision is as to whether a transferee Court can go into the question if the application for execution is within the prescribed period of limitation or not.

7. In the Nagpur case it was inter alia held that the act of giving a certificate incorporating the extent of the decree or of the satisfaction is a judicial one and not merely ministerial and that a transferee Court in which execution is taken out cannot go behind the certificate. This ruling also is not applicable to the instant case inasmuch as the Court below has not gone into the question of the effect of the certificate of transfer and the only point on which it had expressed its opinion was as to whether being a transferee Court it was within its competence to entertain the plea that the execution a

Click Here to Read the rest of this document