P L D 1954 Peshawar 104 (PLP)

MUHAMMAD SHAFI, J.‑Firm Attar Din Muzaffar Din obtained a decree against Sheikh Abdul Aziz anal Muhammad Munir from the Court of Senior Sub‑Judge, Campbellpur on 19th March 1946. The decree was for Rs. 500, with future interest at the rate of eight annas per cent per mensem. The decree‑holder made an application in the Campbellpur Court on the 1st or 2nd of March, 1949, praying that the decree be sent for execution to some Court within Peshawar District, presumably because the judgment‑debtors were said to have no property within the jurisdiction of the Campbellpur Court. A notice was issued to the judgment‑debtors and after that the decree was transferred to the Court of the District Judge, Peshawar, who sent it on for execution to the Senior Sub‑Judge Peshawar. The decree was subsequently transmitted to the Court of Sub‑Judge Nowshera. In the latter Court the judgment debtors raised several objections including that the execution was barred by time. The learned executing Court found this objection baseless, arid proceed with the execution. On appeal the learned Senior Sub‑Judge came, to the opposite conclusion and held the execution petition barred by time. The decree‑holder has come up in revision to this Court, and the only point which requires determination, and has been argued before me is whether the decree‑holder's application for the transfer of the decree from Campbellpur Court to some Courts in Peshawar District, was a step‑in‑aid within the meaning of Article 182 of the Limitation Act? because if it is not then the execution application is clearly barred by time The learned lower appellate Court decided the case against the decree‑holder mainly on the basis of Banku Behari Chatterji v. Narain Dass Datt (AIR1927PC73.), wherein it was held that an application for transmission of a decree from the High Court to the District Court is not by itself a revival of the decree within the meaning of the Act, inasmuch as it mere ministerial act of an officer of the Court, and not the judicial act of a judge. With due reference to Their Lordships of the Privy Council, I have not been able to understand as to how can an application for transmission of a decree from the High Court to the District Court be a mere ministerial act of an officer of the Court because such application is not an act of any officer of the Court, but is that of the decree‑holder. The order passed on such application can be said to be an adminis trative order, which, as has been held by Their Lordships of the Privy Council, may or may not have the effect of the revival of the execution. Be that as it may the authority quoted above is clearly distinguishable from the facts of the present case, firstly because that authority was given under Article 183 and not under Article 182 of the Limitation Act, and secondly because the order in that case for the transfer of the decree from the High Court to the District Court was made on the administrative side by the Registrar of the Calcutta High Court, without any application from the decree‑holder, but only on his suggestion and a Judge of that Court only gave a certificate stating that satisfaction had not been made of the full judgment‑debt, and that no order had been made in his Court for execution of the decree, and fixing the necessary costs of the certificate. In the case before me the order was passed by the Court under Order XXI Rr. 5 and 6 C. P. C., on the application of the decree‑holder and after giving notice to the judgment debtors. This order of the Court cannot be construed to be other than judicial order of the Court. By no stretch of imagination can it be said that it was a ministerial order of the Court at Campbellpur. Apart from that, the question is not whether the order of the Court is a step‑in‑aid within the meaning of Article 182 of the Limitation Act, but whether by making an application the decree‑holder wanted the Court to take some step‑in‑aid in execution of the decree. I cannot conceive that the decree‑holder by making such an application had any other object ‑in view than to take a step further in execution of his decree, otherwise the application would be completely meaningless. I am consequently of the opinion that the application by a decree‑holder for having his decree sent to another Court for execution is a step‑in‑aid within the meaning of Article 182 of the Limitation Act. In this view of the case I am supported by Todarmal and others v. Mst. Phoola Kaur (89 1 C 66) Sheikh Hafeezuddin v. Ram Chander Dass (A I R 1937 All. 397) and Sita Ram and others v. Madho Prasad (A I R 1939 All. 57.). The result is that the order of the learned lower appellate Court, holding that the application for execution of the decree‑holder was barred by time, is clearly erroneous and wrong. It is hereby set aside. I consequently accept this petition, and hold that the execution application is within time, and sent it back to the executing Court to proceed with it according to law. The petitioner shall have his costs in this Court. Pleader's fee Rs.

20. A. H. Petition accepted.