Rachapudi Ranga Rao v. Balabhadrapatruni Subba Rao And Another

1. The appellant is a transferee decree-holder and the second appeal arises out of the dismissal by the lower appellate Court of his application (E.P No. 306 of 1942) to execute the decree in O.S No. 177 of 1930, District Munsif's Court, Bapatla.

2. O.S No. 177 of 1930 was a decree for a sum of money passed against the respondents on 9th July, 1930. Applications in the nature of steps-in-aid of execution had been made on five prior occasions by the original decree-holders and finally the execution petition out of which this civil miscellaneous second appeal arises was filed on 9th July, 1942 by the present appellant in the District Munsif's Court of Tenali, wherein he stated that the decree has been assigned to him and the Court was requested to execute it by attachment and sale of immoveable property. In the meanwhile on 14th June, 1942 the appellant had filed E.A No. 766 of 1942 in the District Munsif's Court, Bapatla, for recognizing the assignment in his favour and for transmitting the decree together with the certificate to the District Munsif's Court, Tenali, for the purpose of execution. The service of notices of this application was a procrastinated one and finally on 12th August, 1942 the Court which passed the decree (District Munsif Court, Bapatla) ordered its transmission to the District Munsif's Court, Tenali, wherein the records were received on 17th August, 1942. By this time 12 years had elapsed from the date of the decree. That Court allowed the execution to proceed on the ground that the judgment-debtor had committed fraud and there-fore the decree-holder was entitled to an extension of the time lost by him on account of the fraud played by the judgment-debtor. On appeal, the learned Subordinate Judge found that there was no fraud committed by the judgment-debtor and hence the decree cannot be executed after the lapse of 12 years.

3. The question for determination is whether the application for execution dated 9th July, 1942 made to the District Munsif's Court, Tenali, was one made to the proper Court and within the time allowed, so that the assignee decree-holder may proceed with the execution. Mr. K. Krishnamurthi, the learned counsel for the appellant-contends that on the authority of Venkataraju v. Gangaraju, 44 M.L.W 805 : (A.I.R (24) 1937 Mad. 113) the execution of the decree is not barred. Cornish, J. in that case did not go to the length of holding that an application made to a Court at a time when it had no jurisdiction to receive the same can be availed of by the applicant to save the period of limitation if he had already filed a transmission petition within time to the Court which passed the decree. This case is only authority for the proposition that if an execution petition is filed within 12 years of the date of decree, but notice to the judgment-debtor was served only after the period of 12 years, it cannot be held that the execution is itself barred or that an application made within 12 years' limit cannot be proceeded with after the lapse of that time. As this second appeal is not against the execution petition filed on 14th June, 1942 before the District Munsif's Court, Bapatla, the decision of Cornish, J. is distinguishable. At the time E.P No. 3061 of 1942 was filed before the District Munsif's Court, Tenali, that Court had no jurisdiction to entertain the application nor had the applicant (the present appellant) any locus standi to make the same since he was recognised as an assignee decree-holder only on 12th August, 1942. There is authority for the position in a decision of Jackson, J. in Nanjunda Chettiar v. Nallakaruppcm Chettiar, A.I.R (15) 1928 Mad. 496 : (109 I.C 404) that until a Court has received the decree transferred to it for execution it has no jurisdiction to entertain an application for execution. Following this decision it has to be held that when E.P No. 306 of 1942 was filed in the District Munsif's Court, Tenali, that Court had no jurisdiction to entertain the same even though the decree was transmitted to it later on and therefore it was not an application to a proper Court as provided by law.

4. Mr. K. Krishnamurthi further contends that when once the Bapatle Court made the order dated 12th August, 1942 recognising the transfer in favour of the appellant and directing the transmission to the District Munsif's Court, Tenali, the latter Court is entitled to proceed with the application made to it on 9th July, 1912 as if a proper application had been in existence before the 12 years' period had expired. I find it impossible to accede to this contention. E.A No. 756 of 1942 dated 14th June, 1942 was merely an application for recognising the assignment and for transmission. There was no prayer as to the mods in which the decree has to be executed.

5. The transmission application cannot therefore be deemed to be a petition on which the decree can be executed.

6. The lower appellate Court has found that the respondent has not committed any fraud in order that Section 18 of the Limitation Act, can be invoked. Mr. Krishnamurthi concedes that he cannot successfully attack this finding of the learned Subordinate Judge. The second appeal is dismissed with costs. (Leave refused).

C.R.K/R.G.D

7. Appeal dismissed.