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Regular Second Appeal No. 17 of 1943, decided on 1st September 1947, from the order of the District Judge, Hyderabad.

S. 47‑Execution‑ Ques"ions relating to legal representatives of Party‑Should be decided under S. 47‑Succession certificate not required.

The Civil Procedure Code does not require that the legal representatives must obtain a succession certificate or probate before taking out execution. But the Code makes provision for legal representative to be brought on record and under section 47, Civil Procedure Code, where question arises as to whether any person is or is not the representative of a party, such questions are to be determined by tile Court.

O. XXI, r. 16 -Decree‑holder's interest transferred by operation of law Transferee should apply for execution and f or bringing his name on record to Court which passed decree and not to Court to which decree transferred for execution‑Application to executing Court is not step‑in‑aid‑Application asking for substitution of name see Place of decree‑holder implies prayer for execution.

Under O. XXI, r. 16, Civil Procedure Code, when the interest of decree‑holder is transferred under operation of law, the transferee has to apply for execution of the decree to the Court which passed it. It is, therefore, clear that a transferee of a decree must apply in execution to the Court which passed the decree though the decree may have been sent for execution to another Court. A Court to which a decree is transferred for execution is not the proper Court within the meaning of Art. 182, clause (5), Limitation Act. The execution application made by a person who has not been brought on record as the legal representative of the decree‑holder, and which application was not made to the proper Court, could not be considered as step‑in‑aid of execution.

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, r. 16, for execution of a decree by such legal representative or assignee,

Art. 182 (5)‑Step‑in‑aid, of execution‑Application under O. XXI r. 16, Civil Procedure Code‑‑Tine runs from final order on application.

Under Art. 182, clause (5), Limitation Act, time runs from the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step‑in‑aid of execution of the decree or order.

When the legal representative or 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 trans feree 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.

20 Cal. 755 ; 9 C .L J 382 ; A I R (20) 1933 Sind 341 ; .A I R. (28) ,1941 Bona: 302 ; A I R (34) . 1947 Sind 149. A I R (20) 1933 Rang: 55 ; 31 Mad. 234 ; 14 M L J. 393.; A I R (15) 1928 All. 299 ; 29 All. 301 ; A I R (25) 1938 Nag. 191.; A 1 R. (14) 1947 Nag. 308 ; A I R (22) 1935 Sind 26,

Ruling of (Sind) Judicial Commissioner's Court‑Whether binding on Chief Court.

The ruling of the Court of the Judicial Commissioner of Sind, though entitled to great weight, is not binding on Chief Court.

Keshewdas Dalpatrai; for Appellant.

Manghanmal Bhojraj, for Respondent.

This is an appeal against a judgment of the learned District Judge, Hyderabad, setting aside an order of the learned Sub‑Judge, Tando Mahomed Khan, who had dismissed an execution application as time‑barred.

The facts of the case out of which this appeal has arisen are as follows Seoomal, the husband of the plaintiff‑respondent had obtained, a money decree against the defendant‑appellant. On 27th August 1938, an execution application filed by Seoomal was disposed of. After that Seoomal died and on 7th April 1941, his Widow, Lachmibai, who is the respondent in the appeal, filed an execution application in the Court of the Sub‑Judge. Tando Mahomed Khan, to whom the decree had been transferred for execution. The learned Judge held that the legal representa tive should have first applied under Order XXI, rule 16, Civil Procedure Code to the Court which passed the decree to have her name entered as the transferee by operation of law and he dis missed the execution application On that very day, 27th August 1941, Lachmibai made an application to the Shahdadpur Court, which had originally passed the decree, praying that she be joined as the legal representative of deceased Seoomal. The Shahdadpur Court passed an order joining Lachmibai as the legal representa tive of Seoomal in the decree. On the strength of that order, an execution application was filed by Lachmibai on 20th December 1.941, in the Court of the Sub‑Judge, Tando Mahomed Khan. The learned Sub‑Judge came to the conclusion that neither the execution application of 7th April 1941, nor the application dated 27th August 1941, made to the Shahdadpur Court could be considered as step -in‑aid in execution and he dismissed the application as time barred.

In appeal, the learned District judge, came to the conclusion that the application dated 276 August 1941, made to the Shahdad pier Court could not be considered as a step‑in‑aid in execution but the execution application of 7th.April 1931, made by Lachmibai to the Sub‑Judge. Tando Mahomed Khan, before she was joined as the legal representative of Seoomal, was made to the proper Court within the meaning of Art. 182, Limitation Act, and could be considered as a step‑in‑aid of the execution that the period of limitation of three years would run from 'that date and so the execution application filed on 20th December 1941, was in time. He accordingly ordered that the papers should be sent to the Sub‑Judge to proceed with the execution in accordance with law.

It has been urged in the appeal that the learned District judge was in error in holding that the execution application of 7th April 1941, was made to the proper court and Was in accor dance with law. The learned District judge in his judgment observed that though this application was made by Lachmibai before she had applied to be joined as the legal representative of deceased Seoomal it was one in accordance with law. He relied on two reported cases. The first is one decided by the Calcutta High Court and reported in Hafisudin Chowdry v. Abdool Aziz 20 Cal. 755. In that case the facts were that the heirs of a deceased decree‑holder made an application in execution. At the time of the application, the heirs had neither taken out a succession certificate nor had they applied for substitution of their names on the record. The Munsiff directed the applicants to obtain a certificate. On their failing to do so, he rejected the application for execution. The heirs then obtained a succession certificate and applied for execution. It was held that the first application made by the heirs before they had obtained a succession certificate was in accordance with law within the meaning of Art. 179, clause (4), Limitation Act. The reasoning given in that case is that both the Civil Procedure Code and the Limitation Act were passed long before the succession certificate had been granted and, therefore, whatever interpretation may be put on the word "application"' as used in the Civil Procedure 'Code and the Limitation Act, it could in no way depend upon the Succession Certificate Act.

The other case relied upon by the learned District judge is the case in Hari Badard Dasi v. Cobinda Chandra Das 9 C L J. 382. In that case, it was held that an application for execution by the executors of the original decree‑holder though probate had spot then been obtained, if proper in form, was a ,step‑in‑aid of execution.

On the anology of those rulings, the learned District‑ Judge in the judgment under appeal came to the conclusion, that the applica tion made by Lachmibai before she was joined as a legal representa tive was still in accordance with law.

It seems to me that the principles on which the two cases referred to by the learned judge were decided have no application to the facts of this case. The Civil Procedure Code. does not require that the legal representatives must obtain ‑a succession certificate or probate before taking out execution. But the Code makes provision for legal representatives to be brought on record and under section 47 Civil Procedure Code, where question arises as to whether any person is or is not the representative of a part such questions are to be determined by the Court:

Under Art. 182 clause (.5), Limitation Act, time runs from the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step‑in- aid of execution of the decree or order.

Under Order XXI, rule 16, Civil Procedure Code, when the interest of decree‑holder is transferred under operation of law the transferee has to apply for execution of the decree to the Court which passed it. It is, therefore, clear that a transferee of It decree must apply in execution to the Court which passed the decree though the decree may have been sent for execution to another Court. A Court to which a decree is transferred for execution is not the proper Court within the meaning of Art. 182., clause (5), Limitation Act. I am, therefore, of opinion that the execution application of 7th April 1941, made by a person who has not been brought on record as the legal representative of the decree‑holder and which application was not made .to the proper Court, could not be considered as step‑in‑aid of execution.

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.

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