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Sita Ram Rai And Another (Decree-Holders) v. Madho Prasad (Judgment-Debtor).
Structured Summary of the Opinion
Factual and Procedural Background
The appeal was originally heard ex parte and allowed by the presiding judge on 16 April 1937, but that ex parte decision was subsequently set aside on an application and the appeal was restored for disposal before the same judge. After hearing counsel, the judge concluded that the earlier ex parte decision was erroneous and that the appeal must fail.
The underlying facts (undisputed) are as follows. A decree for costs in favour of the appellant decree-holders was passed by the Court of the Subordinate Judge of Azamgarh on 16 July 1928. Within three years of that date, on 14 July 1931, the decree-holders filed an application in that Court under Section 39, Civil P.C., on the form prescribed by Order 21, Rule 11, Civil P.C. In column 10 of that application (setting out the "mode in which the assistance of the Court is required") the prayer stated that the judgment-debtor's property lay within the jurisdiction of the Munsif of Bansgaon (District Gorakhpur) and that a certificate may be drawn up for sale of the judgment-debtor's property by auction.
On filing, the Subordinate Judge directed that a certificate of transfer of the decree be prepared and sent to the Court concerned; the certificate was sent to the Court of the Munsif of Bansgaon. It is admitted that the Munsif of Bansgaon took no execution proceedings and the decree remained wholly unsatisfied. The decree-holders filed a fresh application to execute the decree on 20 July 1934. That 1934 application was opposed successfully in the Court below by the judgment-debtor on the ground that it was barred by limitation. The principal question for decision was whether the 20 July 1934 application was within time, which depended on whether the earlier application dated 14 July 1931 constituted a valid "step-in-aid of execution" (i.e., an application "in accordance with law") so as to give a fresh starting point for limitation.
Legal Issues Presented
- Whether the application dated 14 July 1931 filed under Section 39, Civil P.C., amounted to a "step-in-aid of execution" that was "in accordance with law" for the purposes of Article 182(5) of Schedule I, Limitation Act (i.e., whether it could operate to restart or extend the period of limitation).
- Whether the Subordinate Judge of Azamgarh could lawfully transfer the decree for execution to the Munsif of Bansgaon when that Munsif did not possess the pecuniary jurisdiction to try suits of the value represented by the decree (i.e., whether a transfer may be made irrespective of the pecuniary limits of the transferee Court).
- Whether, in consequence of the above, the subsequent application dated 20 July 1934 was within time.
Arguments of the Parties
Appellants' Arguments
- The appellants contended that the application dated 14 July 1931 should be treated as a valid step-in-aid of execution and thus as an application "in accordance with law" that could give a fresh start to the period of limitation.
- They relied on older Madras decisions (Narasayya v. Venkatakrishnayya and Shanmuga Pillai v. Ramanathan Chetti) for the proposition that a Court which passed a decree may send it for execution to another Court irrespective of the pecuniary limits of the transferee Court — i.e., that Section 223 (Code of 1882) allowed a Munsif's Court to execute a transferred decree even if the decree's value exceeded the Munsif's pecuniary jurisdiction.
- The appellants also relied on Hafeez Uddin v. Ram Chander Das (1937) to argue that if a Section 39 application gives sufficient particulars of the decree sought to be transferred, the application must be considered to be "in accordance with law."
Judgment-Debtor's / Respondent's Arguments
- The judgment-debtor opposed the 20 July 1934 application on the ground that it was barred by limitation. The lower Court sustained this objection and the judgment-debtor's limitation defence was the practical basis for opposing execution.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Todar Mal v. Phoola Kaur (1913) 35 All. 389 | Establishes that an application to the Court which passed the decree to transfer it for execution to another Court is a "step-in-aid of execution." | The court accepted this authority as establishing that transfers under Section 39-type applications are steps-in-aid of execution (i.e., can be treated as execution steps for limitation purposes if they are "in accordance with law"). |
| Chattar v. Newal Singh (1890) 12 All. 64 | Defines "applying in accordance with law" to mean applying to a Court to do something in execution which that Court is competent by law to do; it excludes applying to a Court when the applicant either knew or must be presumed to have known the Court was incompetent. | The court relied on this definition to frame the test whether the 14 July 1931 application was "in accordance with law." It used the principle to assess competence and legality of the prayer made to the Subordinate Judge. |
| Munawar Husain v. Jani Bijai Shankar (1905) 27 All. 619 | Affirmed the interpretation given in Chattar regarding "in accordance with law." | The court treated this case as following Chattar and supporting the interpretation applied to the present facts. |
| Amrit Lal v. Murlidhar (1922) 9 A.I.R. Pat. 188 | Patna High Court applied the same interpretation of "in accordance with law" (consistent with Chattar and Munawar Husain). | The court cited this as another authority endorsing the definition and used it in the line of reasoning that competence of the transferee Court matters to whether an application can be "in accordance with law." |
| Pitamber Jana v. Damodar Gachait (1926) 13 A.I.R. Cal. 1077 | Held that "in accordance with law" (Article 182(5), Limitation Act) should include applications which, though defective in some particulars, are such that execution could lawfully be ordered; if an application makes it impossible for the Court to issue execution, it is not "in accordance with law." | The court applied this principle to distinguish permissible defects from incurable defects (i.e., defects that render execution impossible). It used the case to support the conclusion that an application to transfer to a Court without jurisdiction would not be "in accordance with law." |
| Durga Charan Mojumdar v. Umatara Gupta (1889) 16 Cal. 465 | Support for the proposition that a Munsif lacking requisite pecuniary jurisdiction cannot try or execute a decree of larger value. | The court relied on this authority (together with Amrit Lal) to conclude that the Munsif of Bansgaon was not competent to execute the decree valued at Rs. 5,000 and therefore the transfer prayer could not lawfully be granted. |
| Narasayya v. Venkatakrishnayya (1884) 7 Mad. 397 | A Madras decision holding that Section 223 (Code of 1882) permitted a Munsif's Court to execute a decree beyond its pecuniary jurisdiction when the decree had been transferred to it by a District Court. | The appellants relied on this case; the court rejected this line of authority for present purposes, holding that later re-enactment (Section 39, Code of 1908) introduced the words "of competent jurisdiction" and thereby displaced the Madras view. |
| Shanmuga Pillai v. Ramanathan Chetti (1894) 17 Mad. 309 | Another Madras decision to like effect (permitting execution by a Munsif's Court of a transferred decree beyond its pecuniary limits). | Also relied on by appellants; the court held that these Madras cases can no longer be regarded as correct law in light of the explicit wording of Section 39 (addition of "of competent jurisdiction"). |
| Hafeez Uddin v. Ram Chander Das (1937) 24 A.I.R. All. 397 | Held that if a Section 39 application gives sufficient particulars of the decree sought to be transferred, the application cannot be considered other than one "in accordance with law" (in that case a minor mistake in a party's name did not render it invalid). | The appellants relied on this decision; the court distinguished it on the facts (there was only a minor name error in Hafeez Uddin) and refused to apply it to the present case where the prayer identified a transferee Court that was not competent to execute the decree. The court therefore did not follow Hafeez Uddin for the present factual situation. |
Court's Reasoning and Analysis
The court proceeded through a series of legal determinations, each grounded in the statutory language and earlier authorities cited in the opinion:
- The court accepted as settled (citing Todar Mal v. Phoola Kaur) that an application to transfer a decree for execution is, in principle, a "step-in-aid of execution" and therefore could operate for limitation purposes if it is an application "in accordance with law." This established the threshold that the 14 July 1931 application could only give a fresh start to limitation if it met the "in accordance with law" test.
- To determine what "in accordance with law" means, the court relied on Chattar v. Newal Singh and subsequent authorities (Munawar Husain, Amrit Lal). Those authorities define the phrase to mean an application to a Court to do something in execution which that Court is lawfully competent to do; an application is not "in accordance with law" if the applicant knew or must be presumed to have known that the Court was incompetent.
- The court also applied the principle from Pitamber Jana that "in accordance with law" may encompass applications defective in particulars provided that execution could lawfully be ordered on them, but that if the application renders it impossible for the Court to issue execution, it cannot be treated as "in accordance with law."
- The court examined the substance of the prayer in the 14 July 1931 application (quoted in the record) and concluded that its only reasonable interpretation was a prayer to transfer the decree for execution to the Court of the Munsif of Bansgaon. It was conceded (and supported by precedent) that the Munsif of Bansgaon did not have the pecuniary jurisdiction to try suits of the value of the decree (the suit being valued at Rs. 5,000). The court relied on Durga Charan Mojumdar and Amrit Lal to conclude that such a Munsif lacked jurisdiction to execute the decree.
- The court then undertook a statutory comparison between the earlier Code of 1882 (Section 223) and Section 39 of the Code of 1908. It observed that Section 39 reproduced the relevant portion of Section 223 but added the words "of competent jurisdiction" in clause (2). The court interpreted the deliberate addition of those words as reflecting legislative intent that transfers for execution must be to Courts that are competent (including by reference to pecuniary jurisdiction) — i.e., that transfers cannot be made irrespective of the pecuniary limits of the transferee Court.
- On that basis the court held that the Madras decisions (Narasayya and Shanmuga Pillai) which were said to permit transfers irrespective of pecuniary limits could no longer be regarded as correct law in the face of the explicit wording of Section 39.
- The court rejected the appellants' reliance on Hafeez Uddin v. Ram Chander Das. It distinguished that case on its facts: Hafeez Uddin involved a minor error in party's name but otherwise the application allowed execution to be lawfully ordered; by contrast, in the present case the prayer directed execution to a Court that had no jurisdiction to execute the decree, which made it impossible for execution to be lawfully ordered on the 14 July 1931 application. Therefore, the 1931 application was not "in accordance with law" and could not give a fresh start to the period of limitation.
- As a result of the foregoing analysis, the court concluded that the subsequent application dated 20 July 1934 was not within time, and that the lower Court's decision (which had sustained the limitation defence) was correct.
Holding and Implications
Holding: The court dismissed the appeal and upheld the decision below. The court expressly held that the application dated 14 July 1931 was not "in accordance with law" and therefore could not operate to restart or extend the period of limitation; accordingly the later application dated 20 July 1934 was not within time. The court dismissed the appeal with costs.
Implications:
- Direct effect on the parties: The decree-holders' attempt to rely on the 14 July 1931 application as a valid step-in-aid of execution failed; the 20 July 1934 application was time-barred and the lower Court's order upholding the limitation objection was affirmed. The appeal was dismissed with an order for costs.
- On the legal point considered, the court concluded that Section 39, Civil P.C., requires that a decree may be sent for execution only to a Court "of competent jurisdiction" — a competence determined by reference to the Court's ability to try a suit of similar valuation. The court therefore held that earlier Madras decisions to the contrary could not be regarded as laying down the correct law after the 1908 Code's re-enactment.
- The opinion did not purport merely to resolve a procedural defect; it applied statutory interpretation (comparison of Section 39 with prior Section 223) and existing authorities to define the scope of permissible transfers for execution and their effect on limitation.
This summary is based exclusively on the text of the provided opinion and does not add or infer facts beyond those stated therein.
1. This appeal was heard ex parte and allowed by me on 16th April 1937. But, on an application for the setting aside of the ex parte decision being made that decision was set aside and the appeal was restored to its original number and is for disposal before me today. After hearing the learned Counsel for the parties, I have come to the conclusion that my ex parte decision was erroneous and that this appeal must fail. The facts that give rise to the questions of law that have to be decided in the present appeal are undisputed and are as follows : A decree for costs was passed in favour of the appellant decree-holders by the Court of the Subordinate Judge of Azamgarh on 16th July 1928 and within three years of that date, viz. on 14th July 1931, the decree-holders filed an application in that Court under Section 39, Civil P.C. The application was on a form prescribed by Order 21, Rule 11, Civil P.C., and the prayer contained in the application was as follows:
The property of the plaintiff-judgment-debtor lies within the jurisdiction of the Court of the Munsif of Bansgaon in District Gorakhpur. A certificate may therefore be drawn up for sale of the property of the judgment-debtor by auction.
2. This prayer was contained in col. 10 of the application in which column an entry is to be made as to the "mode in which the assistance of the Court is required." On the application being filed, the Court forthwith directed that a certificate of trans. for of the decree be prepared and be sent to the Court concerned. After the preparation of the certificate the case was again put before the Court with a note that the certificate had been prepared and the Court then ordered that the certificate be sent to the "Court concerned." The certificate was then sent to the Court of the Munsif of Bansgaon. It is admitted that no proceedings in execution were taken by the Munsif of Bansgaon and the decree remained wholly unsatisfied. A fresh application to execute the decree was made by the decree-holders on 20th July 1934 and this application was successfully opposed by the judgment-debtor in the Court below on the ground that the application was barred by limitation. The question that I have to decide is whether the application dated 20th July 1934 was or was not within time. It is clear that the application dated 20th July 1934 was within three years of 27th July 1931 the date on which the Subordinate Judge of Azamgarh disposed of the application dated 14th July and ordered the certificate about the transfer of the decree to be sent to "the Court concerned." The application dated 20th July 1934 was therefore within time if the application dated 14th July 1931 amounted to a step-in-aid of execution and was an application in accordance with law.
3. The decision in Todar Mal v. Phoola Kaur (1913) 35 All. 389 puts it, beyond doubt that an application made to the Court that passed the decree to transfer the same for execution to another Court is a step-in-aid of execution. The question however remains whether the application dated 14th July 1931 was an application in accordance with law. In Chattar v. Newal Singh (1890) 12 All. 64 it was hold that the expression "applying in accordance with law" means applying to the Court to do something in execution which by law that Court is competent to do. It was further observed in that case that the expression does not, moan applying to the Court to do something -which, cither to the decree-holder's direct knowledge in fact, or from his presumed knowledge of the law, he must have known the Court was incompetent to do.
4. This case was followed in Munawar Husain v. Jani Bijai Shankar (1905) 27 All. 619. The same interpretation was put on the phrase by the Patna High Court in Amrit Lal v. Murlidhar (1922) 9 A.I.R. Pat. 188. In Pitamber Jana v. Damodar Gachait (1926) 13 A.I.R. Cal. 1077 it was held that the expression "in accordance with law" in Article 182(5) of Schedule 1, Limitation Act, should be taken to mean that the application though defective in some particulars was one upon which execution could lawfully be ordered. It was further held in that case that if the application was such as to make it impossible for the Court to issue execution upon it the application cannot be deemed to be in accordance with law.
5. It follows from the authorities mentioned above that the application or step-in-aid of execution of the nature referred to in Article 182(5), Limitation Act, can be only in accordance with law if the application is made or the step-in-aid of execution is taken in a Court of competent jurisdiction and if the prayer that is made by the decree-holder is one which the Court can lawfully grant. In the case before me, I find that the prayer contained in col. 10 of the application dated 14th July 1931 was one which the learned Subordinate Judge of Azamgarh was not competent to grant. The prayer has been quoted above and the only possible interpretation that can be put on the same is that the decree-holders prayed that the decree be transferred for execution to the Court of the Munsif of Bansgaon. The Munsif of Bansgaon was however not competent to try the suit in which the decree under execution was passed. I am informed that the suit in the Subordinate Judge's Court that culminated in the decree under execution was valued at Rs. 5000 and it has been conceded in argument that the Munsif of Bansgaon was not invested with the pecuniary jurisdiction to try suits of the value of Rs. 5000. He therefore had not the jurisdiction to execute the decree in question : vide Durga Charan Mojumdar v. Umatara Gupta (1889) 16 Cal. 465 and Amrit Lal v. Murlidhar (1922) 9 A.I.R. Pat. 188. It follows that the prayer contained in the application dated 14th July 1931 was one which could not be granted by the Subordinate Judge of Azamgarh.
6. But it is contended by the learned Counsel for the appellants that the last two cases just mentioned were wrongly decided and it is maintained that it is open to the Court which passed a decree to send it for execution to another Court irrespective of the limits of the pecuniary jurisdiction of the Court to which the decree is transferred and in support of this contention reliance is placed on the decisions in Narasayya v. Venkatakrishnayya (1884) 7 Mad. 397 and Shanmuga Pillai v. Ramanathan Chetti (1894) 17 Mad. 309. It was held in these cases that Section 223, Civil P.C. 1882, gives jurisdiction to a Munsif's Court to execute a decree in a suit beyond its jurisdiction which has been transferred to it for execution by a District Court.
7. Section 223 of the Code of 1882 corresponds to Sections 38, 39, 41 and to certain other sections of the code of 1908. In the present case I am concerned with only that portion of Section 223 of the Code of 1882 that has been re-enacted in Section 39 of the Code of 1908. Section 39(1) prescribes the circumstances in which the Court passing the decree may, on the application of the decree-holder, send the same for execution to another Court. Clause (2) of Section 39, Civil P.C., empowers the Court of its own motion to send the decree for execution to any Subordinate Court "of competent jurisdiction." A comparison of section 39 of the present code with the relevant portion of Section 223 of the former Code shows that Section 39 has reproduced the relevant portion of Section 223 verbatim except in one respect. In the former Code, it was provided that "the Court which passed a decree may of its own motion send it for execution to any Court subordinate thereto." But in clause (2) of section 39 the words "of competent jurisdiction" have been added. This addition must have boon deliberate and intentional and was presumably with a view to set at rest the conflict between the Calcutta and the Madras High Courts on the point. The addition of the words of competent jurisdiction in clause (2) of section 39 unmistakably points in the conclusion that the Legislature intended to lay down that it is not open to any and every Court to execute a decree irrespective of its pecuniary jurisdiction and that the competence of a Court to execute a particular decree must be determined by reference to its competence to try a suit of similar valuation in which the decree under the Section was passed. Accordingly the Madras cases can no longer be deemed to be laying down the correct law and I must hold that the Munsif of Bansgaon had no jurisdiction to execute the decree held by the appellants.
8. Great reliance was placed by the learned Counsel for the appellants on the decision in Hafeez Uddin v. Ram Chander Das (1937) 24 A.I.R. All. 397. It was held in that case that if an application under Section 39, Civil P.C., gives sufficient particulars of the decree sought to be transferred the application cannot be considered to be otherwise than one in accordance with law. On the basis of this decision it was argued that as the application dated 14th July 1931 indicated with precision the decree which was sought to be transferred that application must be deemed to be an application in accordance with law. I find it impossible to accede to this contention. Hafeez Uddin v. Ram Chander Das (1937) 24 A.I.R. All. 397 the particulars of the decree were correctly mentioned in the application filed by the decree-holder. There was however slight error in the name of one of the parties and it was held that that error did not make the application otherwise than one in accordance with law. In the case before me the facts are essentially different. The prayer contained in the application under Section 39, Civil P.C., was to transfer the decree for execution to a Court that had no jurisdiction to execute the same. The learned Subordinate Judge of Azamgarh had therefore no jurisdiction to grant the prayer contained in the application. The application was not therefore in accordance with law and cannot give a fresh start to the period of limitation. For the reasons given above I hold that the decision appealed against is perfectly correct and dismiss this appeal with costs.
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