Conflict of opinion on application to take a step-in-aid of execution

Alfred Henry Lionel Leach, C.J.

1. Article 182(5) of the Limitation Act, 1908, as amended by the Indian Limitation (Second Amendment) Act, 1927, states that for the execution of a decree or order not provided for by Article 183 or by Section 48 of the Code of Civil Procedure the period of limitation shall be three years from the date of the final order passed on an application for execution or on an, application to take some step-in-aid of execution. Before the amendment in 1927 the period commenced from the date of the application. The corresponding article in the Limitation Act of 1877 was Article 179(4), which also made the starting point of limitation the date of the application. One of the cases, to which reference will be made arose under the Act of 1877, some of them under the Act of 1908 before the amendment and some after the amendment. Nothing really turns on this, because for the purpose of answering the question referred it is immaterial whether the starting point is the date of the application or the date of the order passed thereon. The question is whether an application to take a step-in-aid of execution of a decree or order can be made when there is no application for execution pending.

2. The decisions of this Court reveal a strong conflict of opinion, but in passing it may be mentioned that in some of the cases very little reason has been given for the opinion expressed. We will take first the cases which have decided that an application to take a step-in-aid of execution can be made the starting point, notwithstanding that an application for execution is not pending. These are Kunhi v. Seshagiri (1909)51.0.758, Sankara Nainar v. Thangamma A.I.R. 1929 Lah, 57, Kannan v. Avulla Haji I.L.R. (1882) Mad. 141 and Rarichan v. Kunhamu (1921)41MLJ374 all of which were decided by Division Benches.

3. In Kunhi v. Seshagiri (1909)51.0.758, an application was made by a decree-holder to the Court for a certificate that a copy of a revenue register was necessary in order to proceed in execution. Apparently the revenue authorities were in the habit of refusing an application for a copy of the register without a certificate that a copy was required for a necessary purpose. An application for execution had at that time to be accompanied by a copy of the revenue register. The question before the Court was whether the application to the Court for a certificate amounted to a step-in-aid of execution. The Court said that it did and consequently started a fresh period of limitation. The importance of this decision is that there was no application for execution pending, nor could there be one until a copy of the revenue register had been obtained. The Bench was composed of Innes and Muttuswami Ayyar, JJ. In the course of his judgment, Muttuswami Ayyar, J., pointed out that Clause 4 of Article 179 of the Limitation Act, 1877, referred first to an application for actual execution and then to a step-in-aid. This, he considered, led to the inference that the step-in-aid of execution might be some preliminary proceeding prior to the actual execution.

4. In Sankara Nainar v. Thangamma A.I.R. 1929 Lah 57, Ramesam, J., remarked that there was no warrant for the view that an application to take a step-in-aid of execution should be made in execution and no authority had been cited in support of the proposition. The learned Judge did not proceed to discuss the question and it must be taken that he formed this opinion on the wording used in the article. Spencer, J., who was of the same opinion, said that the law-only required that there should be an application in accordance with law made to the proper Court.

5. In Kannan v. Avulla Haji I.L.R. (1882) Mad. 141, Devadossand Sundaram Chetty, JJ., referred to those two cases and said that it was too late in the day to question the principle laid down in Kunhi v. Seshagiri (1909)51.0.758. The same question arose in Balagumswami JVaicker v. Guruswami Naicker AIR1926Mad1178 which was decided by De