Imam, C.J.

1. This is an appeal against the decision of the Additional District Judge of Bhagalpur who set aside the decision of the Subordinate Judge of Madhipura. The appeal is on behalf of the judgment-debtor objecting to the execution of a decree. On 23-6-1937, a compromise decree was obtained by one Lokenath Dhandhania, and it was directed by that decree that the sum of Rs. 3,094/- was to be paid by 15-8-1939. The decree was actually registered on 30-9-1937. The first execution which took place concerning the decree was on 20-1-1941, and it was sought to be executed by one Rameshwarlal Jhunjhunwala. It was dismissed on the ground that the application was untenable. The estate of Lokenath Dhandhania was the subject of partition in partition Suit No. 998 of 1939 in the High Court of Judicature at Calcutta. In Extraordinary Suit No. 4 of 1939, Naresh Mohan Thakur, Kamaldhari Lal, Bansidhar Dhandhania and Rameshwarlal Jhunjhunwala were appointed receivers. The receivers applied for appointment of trustees,

On 3-6-1940, Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania were appointed trustees.

The second application for execution was made on 20-12-1941, by Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania, and this was dismissed on 27-8-1943. The third application for execution was made by Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania on 2-3-1944. This was also dismissed on 27-3-1944 for default and the present application for execution filed by Rameshwarlal Jhunjhunwala Rawat Mul Nanpania and Lokenath. Dhandhania was made on 29-7-1946, but was dismissed on 10-4-1948, by the Subordinate Judge whose decision was reversed by the Additional District Judge from whose decision the present appeal has been filed.

2. The sole question in the appeal is as to whether the present application for execution is within time. For the purposes of the present case, one might ignore the application made by Rameshwarlal Jhunjhunwala for execution of the decree on 20-1-1941. The second and third applications made by Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania purported to state that the application was under Order 21, Rule 16, Civil P. O.

It was held in the second execution proceedings that Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania had not proved that they were the transferees or the assignees of the decree in favour of Lokenath. Dhandhania. So far as that matter is concerned, for the purposes of the present appeal one must proceed on the basis of that finding whatever knowledge the Court may possess today whether, in fact, Rameshwarlal Jhunjhunwala and Rawat Mul Nanpania were transferees or assignees by operation of law in view of their having been appointed trustees.

3. The main submission made by Mr. Chatterjee on behalf of the appellant has been that as the decree did not stand in the name of Rameshwarlal Jhunjhunwala or Rawat Mul Nanpania, they could not have executed the decree of Lokenath Dhandhania. Consequently, the applications for execution filed by them on 24-12-1941 and 2-3-1944 were invalid and could not be said to be applications in accordance with law. The question as to whether these two persons were transferees or assignees of the decree by operation of law could not now be gone into.

They were strangers to the decree and had no locus standi to execute it. Mr. Sinha for the respondents, however, relied upon the finding of the Additional District Judge to the following effect:

"If the procedure of the present application had been adopted in that application, then the position would have been much better, but it seems that the decreeholder went into a bona fide mistake in getting that application filed through B. Rameshwar Lal Jhunjhunwala. In any case it seems certain that B. Rameshwar Lal Jhunjhunwala filed that applcation never on his own account, as one executing the decree to realise the money dishonestly. He filed it on behalf of the real decree-holder and that saves limitation, because essentially the decree-holder was behind that application."

to support his submission that in fact the second and third applications filed by Jhunjhunwala and Nanpania in 1941 and 1944 were applications filed by the decree-holder, although the applications were filed through the aforesaid persons.

Mr. Sinha further submitted that even if a transferee of a decree files an application for execution, so long as the application was one in conformity with the provisions of the Code of Civil Procedure, it was of no consequence that it was decided later on that his claim as transferee was not substantiated. Once the application was in accordance With law, that would save the decree and a fresh period of limitation would commence. He relied upon the decision of the Madras High Court in the case of -- K. Rajitagiripathy v. K. Bhavani Shankaran : AIR 1924 Mad 673 [LQ/MadHC/1924/109] (A), and on certain observations made by the learned Judges of this Court in the case of --Mrs. Lall v. Rajkishore Narain : AIR 1933 Pat 658 [LQ/PatHC/1933/136] (B), as also on the decision in the case of -- Bhuneshwar Prasad v. Mohan Bikram Sah : AIR 1948 Pat 323 [LQ/PatHC/1947/63] (C). He further referred to the decisions of the Bombay High Court in the cases of --Dayalbhai Ramji v. Dayalbhai Dulachand : AIR 1938 Bom 309 [LQ/BomHC/1937/165] (D), and --Shankar Hari v. Damodar Vyankaji : AIR 1945 Bom 380 [LQ/BomHC/1944/66] (E). As against these decisions, Mr. Chatterji relied upon the cases of --Unichira v. Raru Nayar : AIR 1951 Mad 674 [LQ/MadHC/1950/250] (P), and --Mohammad Anas v. Bhupendra Prasad, : AIR 1938 Pat 457 [LQ/PatHC/1937/185] (G).

4. We have examined the second and third applications filed by Jhunjhunwala and Nanpania in 1941 and 1944. There is a specific reference to the provisions of Order 21, Rule 16 of the Code of Civil Procedure, and the petitioners state as to how they claimed to execute the decree, viz:. as they, had become trustees of the estate of Lokenath Dhandhania, the decree-holder. There can be no question that the applications were in conformity with the provisions of Order 21, Rule 16 of Civil P. C., and no part of these applications has been shown to us to be contrary to the requirements of the provisions of the Code of Civil Procedure. There can be, therefore, no question that the applications were so far as the Code of Civil Procedure is concerned, in accordance with law.

For the purposes of this case, one cannot ignore the second execution petition of 1941 filed by Jhunjhunwala and Nanpania, because the decree being a registered decree and the date for payment being stated therein, namely 15-8-1939, the decree-holder would have a period of six years in which to file his first application to execute the decree. Six years from 15-8-1939 would take one to 14-8-1945. As the third application for execution was filed on 2-3-1944, it would be within six years from 15-8-1939 and within three years of 27-8-1943, the date of the final order in this second application provided the application was in accordance with law. As I have said, I have no manner of doubt in my mind as to the applications of 20-12-1941 and 2-3-1944, being in accordance with law.

Mr. Chatterji, however, strongly urged that once it has been held that Jhunjhunwala and Nanpania had not proved that they were the transferees, it could not be said that the application was in accordance with law, because it purported to execute a decree to which they were strangers. . He made a reference to the case of : AIR 1951 Mad 674 [LQ/MadHC/1950/250] (F). That decision was of a single Judge and was a decision on the peculiar facts arising in that case, and in view of what his Lordship has stated, perhaps there was no alternative but to take the course which he did. Balakrishna Ayyar J. however, did express himself in one part of the judgment as follows :

"He could have utilised the applications made by Kunhi Raru if he could possibly have contended that he had been acting as his clients agent or on their behalf, and that his clients had ratified the steps he had taken. If that had been the case the ordinary law of agency would apply".

In the present case, whatever the decision may be as to whether Jhunjhunwala and Nanpania , had proved to the executing court that they were transferees, in fact the application filed by them was on behalf of Lokenath Dhandhania, the decree-holder. On this finding of the Additional District Judge, it seems to me that even if this case had been before his Lordship, having regard to the observations he made he would have said that the present case was clearly to be distinguished from the case which he was deciding. In any event, the decision reported in : AIR 1924 Mad 673 [LQ/MadHC/1924/109] (A) was not placed before his Lordship. I rather think this was so because the question before his Lordship was somewhat different to what one has to decide in the present appeal. In : AIR 1924 Mad 673 [LQ/MadHC/1924/109] (A), it appears that an execution petition of 26-7-1919, was made by the transferees-decree-holders to recognise the, transfer in their favour and to execute the decree. The petition was dismissed because the execution of the decree was stayed, and it appeared that in subsequent proceedings the right of those transferee decree-holders had been negatived. At the time the application was made they were transferee-decree-holders by assignment from the original decree-holders and as such the proper persons to execute the decree.

Reference was made to the case of -- Sreepada Bramayya Pantulu v. Parasuramayya 12 Mad LJ 348 to show that such an application as this would have the effect of saving the bar of limitation. The only distinction between this Madras case and the present one which I can find is that at the time that the application for execution was made in those proceedings, the claim of the applicants as transferees had not been negatived. That was done in subsequent proceedings.

In the present case, it was negatived in the execution proceedings. In principle, however, to my mind, it should make no difference that the claim that the applicant was the transferee was ultimately rejected. The provisions of Article 182, Limitation Act do not speak of the application to execute the decree being made by the decree-holder himself. The provisions essentially set out a limitation for execution of a decree. The Article contains various clauses setting out the circumstances from which the period of limitation begins to run. Clause 5 speaks of an application being made in accordance with law to the proper court for execution of a decree or to take some steps in aid of it which gives a fresh starting point. As I have said, the applications made by Jhunjhunwala and Nanpania on 20-12-1941 and 2-3-1944, complied with the provisions of Order 21, particularly Order 21, Rule 16, Civil P. C., and therefore, the applications were in accordance with law. It may be that in the execution proceeding their claim to be the transferees or assignees of the decree was riot proved, but their action in filing the applications would save the decree and would give a fresh starting point so far as limitation is concerned.

I do not propose to refer in detail to the cases of : AIR 1933 Pat 658 [LQ/PatHC/1933/136] (B) and : AIR 1948 Pat 323 [LQ/PatHC/1947/63] (C). Such observations as are made in those decisions certainly support the contention of Mr. Sinha. In the case of : AIR 1938 Bom 309 [LQ/BomHC/1937/165] (D), it was, held that it was not necessary under the Code of Civil Procedure for a transferee to make two separate applications one under Order 21, Rule 11 and the other under Order 21, Rule 16.

It was sufficient if the application for execution of the decree was filed setting out either in it or in an affidavit that the applicant was the transferee either by operation of law or by any particular instrument, in writing and that thereupon the Court could order the application for execution or reject it and an application made by the transferee of the decree must be regarded as a step in aid of execution within the meaning of Article 182, Clause 5. There is no suggestion in this decision that the applicant must successfully establish that he is a transferee before his application could enure to the benefit of the decree-holder. In : AIR 1945 Bom 380 [LQ/BomHC/1944/66] (E), their Lordships considered the meaning of the expression "in accordance with law", and they held that a valid application made in accordance with law cannot Cease to be in accordance with law by any subsequent default on the part of the applicant.

In my opinion, the mere fact that in the execution proceedings Jhunjhunwala and Nanpania did not lead sufficient evidence to prove their claim to be transferees or assignees of the decree of Lokenath Dhandhania would not make their applications not in accordance with law if otherwise the applications were in conformity with the provisions of the Code of Civil Procedure. I am satisfied, looking at the facts of this case, the findings of the Additional District Judge and the decisions cited before me, that the applications made by Jhunjhunwala and Nanpania on 20-12-1941 and 2-3-1944, were applications in accordance with law. Their rejection on the ground that they did not prove that they were the transferees or assignees or for default would not affect the validity of the applications made. I am further satisfied that the applications having been made on the respective dates a fresh period of limitation started in favour of the decree-holder from the date of the final orders and the present application filed on 29-7-1946 was within time. In my opinion, therefore, the appeal must be dismissed with costs.

Kamla Sahai, J.

5. I agree.