P (PLP)

Mr. Manghanmal, who appeared for the respondent, was not able to advance any arguments in_ support of the finding of the learned District judge that the application dated 7th April 1941, was a step‑iii‑aid of an execution. He has, however, supported the judgment of the learned District judge on other grounds which were decided by the learned judge against the respondent, and this lie is entitled to do in view of the provisions of Order XLI, rule 22, Civil Procedure Code. He leas urged that the learned District judge was wrong in holding that' the application made by the respondent to the Shahdad pur Court on 27th August 1941, could not be considered as a step -in-aid in execution. Now, if this application can properly be consi dered as a step‑in‑aid in execution, then it would save limitation, for the last execution application by the deceased Seoomal was disposed of on 25th August 1938. ' In coming to the conclusion that the application dated 27th August 1941, made to the Shahdadpur Court cannot properly be considered as a step‑in‑aid in execution, the learned District judge relied on a case decided by the Court of the Judicial Commissioner of Sind, Devraj Multatri Snhai v. Fatehchand Ramchand A I R (20) 1933 Sind 341 ; in which it was held, that an application by a transferee to be brought on the record without asking for execu tion of the decree, was not an application in accordance with law as it was not an application for execution of the decree. In that case Rupchand, J. C. further expressed that it could not be said that such an application could be consider as a step‑in‑aid. Now, if this case is good law, then, the application made by, the respondents on 27th August 1941, cannot be considered as a step‑in‑aid in execution. The ruling of the Court of the Judicial Commissioner of Sind, though entitled to great weight is not Ending on this Court. With respect I am unable to agree with the view that such an application cannot be considered as an application ill accordance with law, or as a step‑in‑aid of a execution. In a case decided by the Full Bench of the Bombay High Court in Krishatra Govind v.‑ Moolehand Keshawchand A I R (28) 1941 Bom. 302 ; it was held that it was no doubt open to an assignee of .a decree to make tyro applications, one under rule 16 to get‑the assignment recognized and a further application giving particulars of the methods in which execution is prayed and that in a case where there are any complications or where the decree has been transferred for execution at the instance of a decree-holder to another Court, that may be a desirable course. In Hassomal Chatomrsl v. Balohand Shemaram A I R (34) 1947 Sand 1949 ; O'Sullivan, J. expressed agreement with this Full Bench view and observed: "it seems to me, in the light of the opinion, that the filing of the application to get the assignment recognized would clearly be a step‑in‑aid of execution. In C. Moidoo v. S. Muhammad A I R (20) 1933 Rang. 55 it was held that although an application by an assignee to get his name substituted is not an application for ‑execution, it is an application asking the Court to take a step‑in‑aid of execution. In that case Baguley, J., observed. It seems to me from first principles also that, though this application was not an application for execution, it was an application asking‑the Court to take a step‑in‑aid of 'execution. Under Order XXI, rule 16, no doubt the transferee might file an application for execution; but he could not get execution in tiny form until after the notice mentioned in the proviso had been‑issued and the Court bad heard objection to execution if any. The application ‑was made in the present case in effect merely to get rid of the clog which is to be found to tile assignees's freedom of action in Pro. 1, rule 16, and if a person asks the Court to free him from an impediment which clogs his freedom of action in execution his decree, he must be regarded as asking‑the Court to take a step in aiding him to execute the decree. There is authority that‑the Courts must not take too strict a view of technicalities of this description." In Annumalai Mudaliar v. Ramier 31 Mad. 234 ; where the facts were that an application was made purporting to be under section 232, Civil Procedure Code, by the transferee of a decree praying to he .recognized as assignee plaintiff in the suit, and, stating ‑that when so recognized he would file 'an execution petition, i.e., when the Court passed an. order as prayed for, and the defendant did not appeal against such order, it was held that the application was a step‑in‑aid of execution and an application in accordance with law within the meaning of Art. 179 (4) of Sch. II, Limitation Act. In that ease the application was made to the Court which passed the decree but the objection taken was that it was merely an application for substitution and not one for‑execution as required under section 232 of the old Code of Civil Procedure Code (corresponding to Order XXI, rule 16, Civil Procedure Code). The learned Judge answered the objection as follows :‑ "We are unable to agree with this conclusion. The petition as appears from its terms, was intended as a Step-in aid of execution. as it sought the 'recognition by the Court of the petitioners right to execute which recognition it was open to the Court to grant or withhold. The question then arises, was it an application in accordance with law ? It is, no doubt true, as pointed out by Sir Bhashyam Aiyangar in Ramchandra Aiyar v. Subramania Chettiar 14 M. L J. 393 : that section 232, Civil Procedure Code, does not provide for an application in this form, but contemplates that the transferee should apply for execution of the decree without any preliminary of the kind, merely giving notice of the application to the transferer and the judgment‑debtor. Consequently, when, instead of applying for execution, the appellant put n his application for recognition as transferee, the Court might have returned the petition to him for amendment as not in accordance with the section. Instead of doing this, the Court made the order prayed for and the defendant did not appeal against it as be migh have done. Under these cir cumstances the application must be taken to have been in accor dance with law." At may be noted that in the case decided by the Court of the Judicial Commissioner of Sind, referred to above, Rupchand, J. C. sought to .distinguish this Madras case and did not dissent In Mohansing v. Jagat Singh A. I. R. (15) 1928 All. 299 ; it was held, following this Madras case, that an application for substi tution of names is a step‑in‑aid of execution. That decision follow ed an earlier decision of the Allahabad High Court Pitamsingh v. Totasingh 39 All. 301; in which it was held that an application made by ‑the transferee of a decree asking that his name might be substituted on the record for that of the original decree‑holder and a further application asking for time to serve one of the judgment‑debtors, whose address was not then known with notice of the application for substitution were both applications made to the proper Court to take some step‑in‑aid of execution within the meaning of Art. 179 of Sch. II Limitation Act, 1877. In Tanba Yadorao v. Chandra Shankar A. I. R. (25) 1938 Nag. 191 ; Puranik, J. following an older decision of that Court reported in Ramachandra v. Uka A. I. R. (14) 1927 Nag. 308 ; held that an application for substitution of names in place of the original decree‑holder is a step‑in‑.aid of execution and saves limita tion. That learned judge went on to say: " Devraj Multani Sahai v. Fatehchand Ramchand A. I. R. (20) 1933 Sind 341 ; no doubt lays down that an application by a transferee to be brought on record without asking for execution of a decree is not an application in accordance with law, as it is not an application for execution of the decree. The view is not in accordance with the view taken in Ramchandra v. Uka A. I. R. (14) 1927 Nag. 308 ; and on a plain reading of Art. 182 clause (5), 1 respectfully dissent from the view taken in that case. I agree, with respect, with the views of the Bombay, Madras, Allahabad and Nagpur High Courts cited above. In K. J Rustomji's Law of Limitation, at p. 1772, Edn. 5, that learned Commentator has made the following observation in a foot note. In however, it has been held that since under order 6, Civil Procedure Code a transferee decree‑holder cannot apply merely‑ for recognizing him as transferee, but can only apply to execute the decree, an application by the transferee decree‑holder merely to be brought on record, without a prayer for execution of the decree, is not a step‑in‑aid so as to save limitation. Devraj Multani Sahai v. Fatehchand Ramchand (147 Ind. Cas. 470) ; Memoo Mahomed Ismail v. Md. Sidiq Pir Mahomed, (159 Ind. Cas. 807 ; (both being Sind decisions). But the soundness of this view is doubtful, as it is well settled that an application by the transferee decree‑holder for substitu tion of names is a step‑in‑aid of execution." In the present case, the application filed by the respondent for bringing his name on record reads as follows:- " It is submitted on behalf of the plaintiff that the decree papers of the above suit have been transferred to Tando Mahomed Khan Court. However, plaintiff Seoomal has died on about 9th March 1941, and his legal heir and representative is his wife and survivor, Sh. Lachmibai. None also but she is the heir of the deceased. Hence it is prayed that the Hon'ble Court may be pleased to appoint her as legal representative of the deceased Seoomal and join her as such in the category of the plaintiff, and intimate the same to Tando Mahomed Khan Court." This application was not rejected by the Court as not in accordance with law, but granted and it was ordered ; " Lachmi bai to be joined as heir of the plaintiff." This enabled the respondent to proceed in execution against the appellant in the Tando Ma'homed Khan Court to which the decree had already been transferred. How can it be said then that it was not a step‑in‑aid ? If the respondent had made the application to the Shahdadpur Court in the form of an execution application, then the column relating to " the mode in which the assistance of the Court is required " would have had to be left blank, as the respondent wanted execution within the limits of the Tando Mahomed Khan Court to which the decree had already been transferred. A prayer to have the name of a legal representative or assignee entered in place of the decree‑holder is implied in an application under order XXI, rule 16, for execution of a decree by such legal representative or assignee, and when the legal representative of assignee makes an application to have his name substituted for the decree‑holder and to have intimation sent to the transferee Court, as a preliminary to and to enable him to make an execution application to the transferee Court, it cannot be said that such an application is in contravention of the law, much less can it be said to be not an application asking the Court to take a step‑in‑aid of execution of the decree. The step of substituting the legal representative of the deceased judgment creditor is a step which must be treated as in accordance with the spirit as well as the letter of the law. For the foregoing reasons I have come to the conclusion that the application made by the respondent on 27th August 1941, may properly be considered as an application made to the proper Court in accordance with law, asking it to take some step‑in‑aid of execution of the decree. I, therefore, hold, though on grounds different from those on which the learned District judge bas based his judgment, that the execution application dated 20th December 1941, was within time, and I dismiss this appeal with costs. K. M. A./A. H. Appeal dismissed.