Sarjoo Prasad, J.:— This appeal which has been preferred by the judgment-debtors arises out of an application under Order 21 rule 90 read with section 47 of the Code of Civil Procedure.
The decree under execution was passed on the 26th of January, 1943. It was transferred for execution by the Subordinate Judge, 1st Court, Monghyr, under his order dated the 17th of January, 1946, passed upon an application made by the decree-holder for that purpose. The execution case to which this appeal relates was filed in the Court of the Subordinate Judge, Begusarai, on the 31st of January, 1947. In the said execution after the service of the various processes certain properties were attached and sold on the 1st of December, 1947. It appears that immediately after the sale but on that very day two of the Judgment-debtors appeared and applied for time to pay off the decretal dues. This application was not entertained by the Court, and thereafter on the 2nd of January, 1948, the judgment-debtors including those who had appeared on the date of the sale filed this application under Order 21 rule 90 and section 47 of the Code of Civil Procedure.
In the application in question the judgment-debtors alleged that the sale was without jurisdiction as notice under Order 21 rule 22 had not been served on them. They also stated that there was fraud and material irregularity and illegality in publishing and conducting the sale, and they further alleged that the execution case itself was barred by limitation.
The decree-holder-auction-purchaser resisted the said, application filed by the judgment-debtors and contended that the various processes were duly served, that there was no limitation involved, and that the sale had validly taken place.
The learned Subordinate Judge who heard the application by his Order dated the 26th of May, 1948, dismissed the same. He found that the plea of non-service of notice under Order 21 rule 22 was frivolous, that the allegation of material irregularity in publishing and conducting the sale was incorrect, and that the applicants had failed to prove that they had sustained any injury by the sale. On the point of limitation the learned Subordinate Judge found that the execution case was within time as having been filed within three years from the 17th of January, 1946, which was the date of the order passed on an application for transfer of the decree for execution constituting a step-in-aid.
So far as the service of notice under Order 21 rule 22 is concerned, I agree with the view of the learned Subordinate Judge that the objection is frivolous. A reference to the ordersheet in the execution case shows that on the 8th of February, 1947, notices under Order 21 rule 22 were directed to be issued by the Court. On the 10th of March, 1947, the Court recorded an order that notices had been served. Thereafter proceedings were taken for issue of attachment and sale proclamation on various respective dates. The judgment-debtors have not examined themselves to deny this service of notice but have put into the witness-box a patwari of theirs who was unable to say where he was in February, 1947, that is, during the relevant period of the service of notice under Order 21 rule 22. His evidence has been I rightly discarded by the learned Subordinate Judge, and I see no reason to differ from his finding on that point. There is the further fact that two of the judgment-debtors-appellants actually appeared before the Court on the date of sale and applied for time to pay up the decretal dues.
The question of illegality or irregularity in the conduct of the sale or consequent prejudice to the judgment-debtors has not been seriously pressed before this Court. Even if the evidence adduced by the decree-holder on the point of service of attachment and sale proclamation is meagre, there is nothing to show that the price fetched at the sale was inadequate. As I have said, the point was not even seriously argued before this Court, and I must uphold the decision of the learned Subordinate Judge thereon.
The contention seriously advanced on behalf of the appellants is the contention that the execution is barred by limitation. The decree under execution is dated the 26th of February, 1943, while the execution case itself was filed on the 31st of January, 1947, evidently three years after the date of the decree. Prima facie a question of limitation will arise. But as stated above, a petition for transfer of the decree from the Court which passed it to the Court of execution was made by the decree-holder and an order for transfer was passed on the 17th of January, 1946. If this application for transfer of the decree for execution and the final order passed thereon constitute a step-in-aid of execution within the meaning of clause (5) of Article 182, Limitation Act the execution is within time. The learned Subordinate Judge correctly formulated the question when he observed:
“The question for decision therefore is whether an application for transfer of a decree is a step-in-aid of execution and whether the period of 3 years should in the present case be computed from the 17th January, 1946.”
Counsel for the appellants contends that all application for transfer is not a step-in-aid of execution, and he drew our attention to a decision of this Court in Musammat Keshan Kuer v. Rajeswari Narain Singh(1) and Mahidar v. Kalyani Prasad(2). The learned Counsel for the respondents relies upon certain other decisions of this Court in Ramchandra Marwari v. Krishna Lal Marwari(3), Bhagwat Sahay v. Ram Sukrit Ram(4), Bhagwat Sahay v. Ram Sukrit Ram(5), Bishundeo Narain Missir v. Raghunath Prasad Missir(6) and some decisions of the Calcutta High Court in Ahad Bux Jamadar v. Kinkar Chandra Pal(7) and Sreenath Chakravarti v. Priyanath Bandopadhyay(8). As there appears to be some show of conflict between some of the decisions of this Court, I consider it desirable to examine the decisions cited by the parties in some detail.
The earliest decision on the point is the decision in I.L.R 1 Patna 328. In that case the decree-holder obtained a decree on the 23rd of May, 1911, in the court of the Munsif of Bhagalpur. Within three years of that date, that is on the 1st of May, 1914, he applied for a certificate to execute the decree in Monghyr where it appeared that the judgment-debtor had certain property. This application was allowed, and the certificate he asked for was granted. It appears that the decree was not actually transferred for execution. On the 22nd November, 1916, again within three years from the date on which he made the last application, the decree-holder applied for the same relief, namely for transfer of the decree. Thereafter he again did not take any further steps. On the 3rd of September, 1919 again within three years from the date of the last application, the decree-holder applied a third time. On this occasion the judgment-debtor, who appeared, objected that the application was time-barred. It was contended by the judgment-debtor that the applications made on the 1st of May 1914 and again in November, 1916, were not steps-taken in aid of execution, and as such, they could not operate to save the bar of limitation. This contention could not find favour with their Lordships who held Sir Dawson Miller, C.J having delivered the judgment: “I have no doubt whatever however that such an application is a step-in-aid of execution and it is a step which is always necessary where the decree-holder desires to obtain execution against property situate outside the territorial limits of the jurisdiction of the Court which made the decree. In fact there are certain decisions to the effect that such an application is a, step-in-aid of execution whereas the learned Vakil for the appellant has not been unable to put before us any case in which the contrary view has been expressed. I should have thought myself that there could be no Question upon this point”. The above decision is a Division Bench decision of this Court.
A contrary view, however, appears to have been taken in A.I.R 1935 Patna 485—the case relied upon by the appellants. As this is also a Division Bench, judgment the case requires closer examination. In this case a previous application for execution was dismissed on the, 20th September, 1929, and a fresh application for execution was filed on the 28th of September, 1932, more than three years after the dismissal of the previous application. On this application it was contended that a notice under Order 21 rule 22 was served upon the judgment-debtor, and there was an order of execution in that case. Then a third application for execution was filed which came up for consideration by their Lordships. The question raised for consideration was whether in view of the order passed in the second execution case directing the execution to proceed, it was open to the judgment-debtors to raise the question in the third execution proceeding that the second execution case was barred by limitation; in other words, the point which fell for decision by their Lordships was whether impliedly the point of limitation as to the second execution case would not be deemed to have been decided against the judgment-debtors in view of the direction made by the Court that the execution should proceed. The decree-holder's contention was that notice under Order 21 rule 22 having been served on the judgment-debtor in the second execution case, the plea of limitation would be deemed to have been decided against them, it not having been raised there, and that plea could not be available in the third, execution proceeding. This plea, their Lordships did not accept because they held that the second application for execution was not an application for execution as such, but simply an application for sending copy of the decree and certificate for execution to another Court. For this reason they held that the plea, of limitation was available to the judgment-debtor, and that the third application was, therefore, barred by limitation. Incidentally they have, of course, observed in their judgment that an order for sending a decree to another Court for execution is not an order for execution and it could be made on a, simple application without any form. But they have said nothing that such an application could not constitute, a step-in-aid of execution. In fact, this point was never argued before, them. All that they held was that such an application was not an application for execution, and they did so only for the purpose of deciding whether the question of limitation was available to the judgment-debtor or it was barred by the principle of constructive res judicata. Therefore, this case is no authority for the contention that, an application for transfer of a decree from one Court to another and the order passed thereon did not constitute a step-in-aid of execution as contemplated by Article 182(5) of the Limitation Act, and did not, in my opinion; in any manner shake the authority of the previous decision in I.L.R 1 Patna 328 which does not appear to have been even referred to in this later case. In my opinion, the learned Subordinate Judge has correctly distinguished that decision.
The decision in I.L.R 1 Patna 328 was followed in another decision of this Court in A.I.R 1938 Patna 313, where Wort, J., sitting single held that an order made on an application for transferring the decree for execution to another Court, is a step-in-aid of execution and give's a fresh start to the decree-holders under Art. 182(5). It is true that the observations of Wort, J. cast some doubt upon the correctness of the decision in I.L.R 1 Patna 328 in view of the decision of the Privy Council in Banku Behari v. Naraindas Dutt. But Wort, J., himself recognised the distinction that the decision of the Privy Council was on Article 183 and not on Article 182 of the Limitation Act. The learned Judge was also in some doubt as to the accuracy of the observations made by Sir Dawson Miller in his decision in I.L.R 1 Patna 328 when Wort, J., pointed out that Article 282(5) of the Limitation Act, does not speak of an application in aid of execution but sneaks of an order made on an application as a step in aid of execution. This doubt would, not have arisen if. I may say so with respect, Wort, J. were conscious of the fact, that the article, as, it originally stood prior to its amendment by Act IX of 1927, did not contain the words “the final order passed on an application made”. Therefore, when Sir Dawson Miller gave his decision, his judgment was quite in consonance with the language of the article as it then stood.
The other decision relevant on the point is the decision in Bhagwat Sahay v. Ram Sukrit Ram. This was a decision in Letters Patent Appeal against the aforesaid judgment of Wort, J. which I have already discussed. In this decision Courtney Terrell, C.J and James, J. affirmed the view taken by Sir Dawson Miller in the case of Ramchandra Marwari. They also distinguished the decision of the Privy Council in Banku Behari Chatterji with these observations: “It seems, however, quite clear that the distinction has been recognised by many of the other High Courts that the decision of their Lordships of the Privy Council dealt only with Article 183”. They definitely held: “the decision of this Court in Ramchandra Marwari v. Krishna Lal Marwari was not affected in the least by the decision of the Privy Council and the order for transfer was a step-in-aid of execution and the subsequent proceedings by the decree-holder were consequently within time under Article 182, clause (5)”.
To a similar effect is another Division Bench decision of this Court in Bishundeo Narain Missir v. Raghunath Prasad Missir to which Wort, J., himself was a party though the judgment in the case was delivered by Meredith, J. In that case also their Lordships reiterated the principle that an application for transfer of a decree, if made to a proper Court, is a step-in-aid of execution. Such an application must also be an application in accordance with law.
Having regard to these numerous authorities of this Court, it would have been unnecessary to enter into such details in an examination of the question but for the fact that another discordant note was sounded in the year 1945, despite those earlier pronouncements, by Manohar Lall, J., to which Beevor, J., also agreed in Mahidar v. Kalyani Prasad. Learned Counsel for the appellants has very strongly relied upon this decision in support of his arguments. It is gratifying to note that the facts of this case have been very carefully analysed by the learned Subordinate Judge in his judgment under appeal. The decree in the case was obtained on the 25th of March, 1930 in the Purulia Court. In the years 1930, 1932 and 1933 infructuous attempts were made to execute this decree. On the 9th of July, 1935, another execution case was started but it was dismissed on part satisfaction in May, 1936. On the 18th of June the same year the decree-holder made an application to the Purulia Court which had passed the decree that the decree should be transferred for execution to the Court at Asansol with a certificate of non-satisfaction, and on that very date the Court passed an order directing transmission of the decree on preparation of the required certificate of non-satisfaction. In pursuance of this order a certificate was prepared by the office on the 25th of June, 1936, which was signed by the Court with necessary directions. The order and the certificate of non-satisfaction were received by the Court at Asansol on the 4th of July, 1936, but as the decree-holder did not make any application for execution before the Asansol Court, the certificate was returned, to the Purulia Court on the 4th March, 1937. On the, 6th of July, 1939, the decree-holder made an application for execution of the decree to the Court at Purulia. Mr. P.R Das appearing for the appellants-Judgment-debtors argued that the date of the final order passed in the application to take the step-in-aid of execution could not be taken to be beyond the 25th of June, 1936, and, therefore, the application for execution filed on the 6th of July, 1939, was barred by limitation being definitely beyond three years from the date of that order. Their Lordships gave effect to this contention of Mr. P.R Das, and they held that the date of the final order was the 25th of June, 1936, and not the 6th of July, 1936. They say so in very clear terms when they observed in the judgment: “In my view, therefore, it follows clearly that the final order on the application to take step-in-aid of execution in this case was passed on the 25th of June, 1936, and not on the 6th July, 1936.”. This, as the learned Subordinate Judge points out, by necessary implication assumed
“that an application for transfer of a decree was a step-in-aid of execution and that limitation ran from the date of the final order passed thereon disposing of the case judicially”
I have quoted the words of the learned Subordinate Judge himself. It is true that in the said judgment their Lordships incidentally also observed that the application for transmission of the decree to the Court at Asansol with a certificate of non-satisfaction “was not by itself a revival of the decree within the meaning of the Act inasmuch as it was a mere ministerial act of an officer of the Court and not the judicial act of a Judge”. They relied for this observation upon a Full Bench decision of the Calcutta High Court in Chutterput Singh, and they held that the correctness of this decision was approved by their Lordships of the Judicial Committee in Banku Behari Chatterji. These observations do not constitute the ratio decidendi of the case and must be taken to be mere obiter. In any case the observations cannot amount to anything more than saying that an application far transmission of a decree for execution to another Court did not constitute a revivor of the decree. But they nowhere said that it would, not constitute a step-in-aid of execution, and that the order passed thereon would not operate to save limitation under Article 182(5) of the Limitation Act. On the other hand, as I have pointed out, in agreement with the learned Subordinate Judge their Lordships held by necessary implication that the application for transfer of a decree did constitute a step-in-aid of execution, and the final order passed thereon was a fresh starting point of limitation for execution of the decree.
It would be needless to multiply authorities, but the decision of the Calcutta High Court in Sreenath Chakravarty furnishes an interesting study. In that case reliance was placed upon the aforesaid Full Bench decision in I.L.R 43 Cal. 903 and the Privy Council decision in 54 I.A 129 for the contention that an application to a Court which passed the decree for the transfer of the decree to another Court for execution is not a step-in-aid of execution. It must be observed that the point did not actually arise in the case but Mukherji, J., repelled the contention in these words: “we desire to say that it has no force, that the authorities are the other way about, and that the two decisions, on which reliance has been placed, relate to decrees passed on the Original Side of the Court, which, under the practice obtaining there, are transferred for execution under ministerial orders. No question of a step-in-aid of execution arises under the article of limitation applicable to such decrees, but a question of revivor, which such ministerial orders can never amount to. Of course, a mere application to have a decree transferred to another court is not an application for execution, Khetpal…(Decree-Holder); v. Tikam Singh…(Judgment-Debtor).*, but we do not think it has ever been held that it is not a step-in-aid of execution: in fact it is the first aid that the court which passed the decree is called upon to give to a decree-holder who stands in “need of it when execution has to be had in a different court”. With all these observations of the learned Judge I respectfully agree. The two decisions, therefore, of the Full Bench in I.L.R 43 Cal. 903 and of the Judicial Committee in 54 I.A 129 should not cause any confusion on the point. They are decisions given under Article 183 of the Limitation Act and have nothing to do with the interpretation of Article 182(5) of the said Act. I, therefore, think that the learned Subordinate Judge was right in holding that the application for execution was within time, and the appellants' contention on the point is therefore without any substance.
Counsel for the respondent has also contended that the question of limitation was not available to the judgment-debtors-appellants as it was barred by the principle of constructive res judicata. He contended that notices under Order 21 rule 22 having been served upon the judgment-debtors and thereafter the Court having ordered the execution to proceed by attachment and sale of the properties in execution and the judgment-debtors having never appeared to object to the execution on the ground of limitation, it must be impliedly taken to have been decided against them. He relied for this purpose upon a decision in Lalit Mohan Roy v. Sarat Chandra Saha and Kelepalli Rajitagiripathy v. Kalepalli Bhavani Sankaram. Learned Counsel for the appellants, however, contended that the principle of constructive res judicata should not be extended so far. He submits that constructive res judicata could have been applied if the judgment-debtors had appeared at some stages of the execution case and had done some overt act to indicate that they allowed the execution case to proceed without any such objection on the score of limitation. In any view of the matter, it is unnecessary to deal with the question because I have held already that there was no limitation in the present case.
For the reasons stated above, I must uphold the decision of the learned Subordinate Judge and dismiss the appeal with costs.
Ramaswami, J.:— I agree.
G.N.P
Appeal dismissed.