ORDER
K.S. Radhakrishnan, J.
1. This matter has been placed before us on a reference made by one of us, K. Padmanabhan Nair, J. doubting the correctness of the decision in Sreedharan Nair v. Marakkar, 1987 (2) KLT 492. The learned single Judge who decided Sreedharan Nair’s case took the view that Rule 277 of the Civil Rules of Practice would give the decree holder six months time from the date of receipt of the decree by the transferee court to apply for execution even if 12 years period as contemplated under Article 136 of the Limitation Act, 1960 for execution of the decree is over. Court below applying the dictum laid down in the above mentioned case held E.P. 323/99 is maintainable even though filed after a period of 12 years, the correctness of which is under challenge in this case.
2. Respondent herein filed O.S. 5/86 claiming an amount of Rs. 12,232. An ex pane decree was passed on 19.8.1987 in favour of the plaintiff. Decree holder plaintiff filed E.P. 1181/99 on 18.8.1999 before the Munsiff Court, Trichur for transferring the decree to Munsiff Court, Chavakkad. Application was allowed by the Munsiff, Trichur on 1.9.1999 transmitting the decree to the Munsiff Court, Chavakkad. The period of 12 years for executing the decree in O.S. 5/87 dated 19.8.1987 expired on 19.8.1999. Decree holder filed E.P. 323/99 before Munsiff Court, Chavakkad on 13.10.1999. Objection was raised by the judgment debtor stating that E.P. has been filed beyond 12 years from the date of the decree as provided under Article 136 of the Limitation Act, therefore liable to be dismissed as barred by limitation. Munsiff Court, Chavakkad placing reliance on the decision in Sreedharan Nair’s case overruled the objection and held that the application is maintainable.
3. Counsel appearing for the judgment debtor submitted that the decision in Sreedharan Nair’s case, requires reconsideration. Counsel took us through various provisions of the Limitation Act and also placed reliance on the decision of the Apex Court in West Bengal Essential Commodities Supply Corporation v. Swadesh Agro fanning and Storage Pvt. Ltd. ((1999) 2 SCC 315) wherein it has been held it the time is reckoned from the date of the decree but from the date when the decree is prepared it would amount to doing violation to the provisions of the Limitation Act as well as Order 21 Rule 11 CPC which is clearly impermissible. Counsel appearing for the respondent placing reliance on the decision of the learned single Judge of this Court in 1958 KLT 357 and contended that the transferor court in passing the order to send the decree for the purpose of execution to the transferee court be deemed to have decided against any limitation so far as the further execution of the decree is concerned and that the transferor court is acting judicially.
4. Limitation Act, 1963 was enacted by the Parliament repealing the Limitation Act, 9 of 1908 which came into force on 1st January, 1964. The essential attribute of the Law of Limitation is that it accords and limits a reasonable time within which an action or other proceeding must be brought upon causes of action which it affects. Rules of limitation are prima facie rules of procedure and do not create any right in favour of any person nor do they define or create causes of action, but simply prescribe that the remedy can be exercised only up to a certain period and not subsequently. The Statute of Limitation assumes the existence of a cause of action, its objection is merely to interpose a bar after a certain period to a suit to enforce an existing right. Article 136 of the Limitation Act stipulates 12 years for execution of any decree other than a decree granting a mandatory injunction or order of any civil court. An application for execution is a substantive application by which proceedings in execution are commenced. Order 21 Rule 10 CPC stipulates that where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer if any, appointed in this behalf, or if the decree has been sent to another Court then to such Court or to the proper officer thereof. Order XXI Rule 11 (2) stipulates that save as otherwise provided by Sub-rule (1) every application for the execution of a decree shall be in writing signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form in the particulars stipulated.
5. High Court of Kerala by virtue of powers conferred under Section 122 of the Code of Civil Procedure, 1908 has framed Civil Rules of Practice for the purpose of regulating the procedure and practice in the Subordinate Civil Courts in the State. Chapter VIII of Civil Rules of Practice deals with proceedings in execution. Rule 278 deals with application for execution which shall be in Form No. 51. Form obliges the applicant to set out the particulars required by Order XXI Rule 11(2) Clause (d) to (i) of the Code. Reliefs prayed for also be stated in Form No. 51. Schedule also forms part of Form No. 51
wherein the description of the property, interest of judgment debtor and details of encumbrances also be given. Execution petition following the above mentioned procedures is to be presented under Order 21 Rule 11 (2) subject to Article 136 of the Limitation Act, 1963.
6. We may examine whether the application for transfer of a decree would amount to an application for execution. Order XXI Rule 5 of CPC deals with mode of transfer of a decree for execution to another court. The court which passed such decree shall send the decree directly to such other court whether or not such other court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction. Order XXI, Rule 6 lays down the procedure where court desires that its own decree shall be executed by another court. The court sending a decree for execution shall send a copy of the decree; a certificate setting forth that satisfaction of the decree has not been obtained by the execution within the jurisdiction of the court by which it was passed, or, where the decree has been executed in part, the extent to which the satisfaction has been obtained and what part of the decree remains unsatisfied and a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect. Rule 7 stipulates that the court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof. Rule 273 of Civil Rules of Practice states that an application for the transmission of a decree to another court for execution shall be made by a verified execution petition handed with the cause title of the suit and the serial number of the execution petition in the suit and shall state, in addition to the particulars set out in Clauses (a) to (j) inclusive of Order XXI Rule 11(2) of the Code and shall specify the Court to which transmission of the decree is sought as in Form No. 50. Form 50 deals with the application for transmission of decree which stipulates that the particulars required under Order XXI Rule 11(2) of the Code paragraphs (a) to (i) be set out with a prayer in the application is for transmitting the decree to the transferee court for execution of the decree.
7. Rule 276 stipulates that where a decree of one court has been transmitted for execution to another court an application for execution shall be made to the latter court. Order XXI, Rule 10 stipulates that whenever the holder of a decree desires to execute it, he shall apply to the court which passed the decree or to the officer if any appointed in this behalf, or if the decree has been sent to another court then to such court or to the proper officer thereof. Above mentioned provisions would conclusively show that an application for execution and an application for transmission of the decree for execution entirely different. They are governed by different procedures laid down under the Civil Procedure Code as well as Rules of Practice framed by the High Court of Kerala. Application for execution would squarely fall under Order XXI Rules 10 and 11 subject to Article 136 of the Limitation Act.
8. The Gujarat High Court in State of Rajasthan v. R. Savkasha, AIR 1972 Guj. 179 held that an application for transfer of decree is not an application for execution. The jurisdiction to entertain the execution application after the decree has been transferred vests in the transferee court even if the copy of the decree has not been received by it. In Pravagdas Shankerlal v. Indirabai (AIR 1948 Nag. 189) it was held that an application to transfer a decree to another Court for execution is not an application for execution but only a step in aid of execution. It only asks that the decree be transferred to another court to enable it to be executed. The court held a further application would be necessary in the transferee Court. In Devi Das v. MD. Akbar Khan (AIR 1935 Lah. 508) the court held that an application for transfer of a decree for execution is not a substantive application for execution. The transmission order is a ministerial and not a judicial order and an order passed by the transferring Court is not a final adjudication on limitation and an application for execution filed in the transferee Court more than 12 years after the decree is beyond time and cannot be considered a continuation of the prior applications before the transferring Court. In Rulia Ram v. Diwan Chand (AIR 1934 Lah. 728) the Lahore High Court has taken the view that in a case where decree is transferred, application for execution must be made to transferee Court and not to parent Court The above being the legal position, we are of the view if an application for transfer of decree for execution to the transferee court is not an application for execution. Rule 277 has been framed by the High Court of Kerala in exercise of the powers conferred under Section 122 of the Code of Civil Procedure, 1908 cannot override the provision of the Limitation Act, which is a central legislation enacted by the Parliament. Decree holder if failed to submit application for execution within the period of six months from the date of receipt of decree by the transferee court it would submit the fact to the transferor Court. Application for execution has to be filed in the transferee court subject to period prescribed under Article 136 of the Limitation Act failing which the decree would become inexecutable, being hit by the Law of Limitation. We therefore, overrule the decision in Sreedharan Nair’s case. Application for execution was admittedly filed beyond 12 years as prescribed under Article 136 of the Limitation Act and hence liable to be dismissed as not maintainable. Consequently order passed by the executing court would stand set aside and we hold that application for execution would stand dismissed. We therefore allow this revision and set aside the impugned order. The reference is answered accordingly.