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Odhavji Anandji Vs. Haridas Ranchhordas - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 2882 of 1919
Judge
Reported inAIR1943Bom238; (1943)45BOMLR400
AppellantOdhavji Anandji
RespondentHaridas Ranchhordas
Excerpt:
.....183-decree-execution-revival of decree-scape of proviso-civil procedure code (act v of 1908), order xxi, rules 11, 22-form of application-prayer for notice under order xxi, rule 22-proper application.;article 183 of the indian limitation act, 1908, provides that an application for execution may be made within twelve years of the date of the decree to be executed. the proviso to the article dealing with the revival of the decree has application only if the application for execution on the face of it is made more than twelve years after the date of the decree.;an application for execution in which the assistance of the court is required 'by issuing a notice under o, xxi, rule 22, of the civil procedure code', 1908, is a proper application for execution as required under order xxi, rule..........brought for hearing. it appears that on defendant no. 2's attorneys' application an extra original notice dated september 19, 1940, was issued by which the plaintiff was called upon to appear before the chamber judge on july 31, 1942, to show cause why the decree should not be executed against him. that notice was sealed on june 24, 1942, and at the top refers expressly to application no. 524 of 1940 that notice has now come for argument.2. two objections are raised on behalf of the plaintiff : first, that the execution of the decree is time-barred and the other that the decree has been satisfied. on the first point it is urged that under article 183 of the indian limitation act, unless there is a revival of the decree before twelve years have expired, execution would be time-barred. it.....
Judgment:

Kania, J.

1. This notice under Order XXI, Rule 22, Civil Procedure Code, 1908, is opposed on the ground that the application for execution is time-barred. The decree in this suit was passed on September 3, 1928, for Rs. 10,000 against the plaintiff. Defendant No. 2 had made no application for execution at all till August 28, 1940. He then made the first application for execution being Application No. 524 of 1940. The application is on the usual printed form prescribed by the High Court Rules, and in the last column, in respect of the mode in which the assistance of the Court is required, it is mentioned 'By issuing a notice under Order XXI, Rule 22, of the C.P.C.' As no application for execution had been made since the date of the decree, the office issued a notice on September 19, 1940, calling upon the plaintiff to show cause why the decree should not be executed against him. That notice could not be served on the plaintiff for a long time, and as a year was about to expire, according to the practice of the office an extra original notice had to be applied for, obtained and served before the notice could be brought for hearing. It appears that on defendant No. 2's attorneys' application an extra original notice dated September 19, 1940, was issued by which the plaintiff was called upon to appear before the Chamber Judge on July 31, 1942, to show cause why the decree should not be executed against him. That notice was sealed on June 24, 1942, and at the top refers expressly to Application No. 524 of 1940 That notice has now come for argument.

2. Two objections are raised on behalf of the plaintiff : First, that the execution of the decree is time-barred and the other that the decree has been satisfied. On the first point it is urged that under Article 183 of the Indian Limitation Act, unless there is a revival of the decree before twelve years have expired, execution would be time-barred. It is argued that by the issue of a notice under Order XXI, Rule 22, alone the' decree is not revived, and the decision in Monohar Das v. Futteh Chand I.L.R. (1903) Cal. 979 is relied upon to support that contention. It is further argued that the mere issue of a notice by the office does not by itself operate as a revival, which must mean an adjudication of the rights of the parties and an order of the Court that the decree was revived. In my opinion, this whole line of argument is based on a misconception of Article 183 of the Indian Limitation Act. That article provides that an application for execution may be made within twelve years. The proviso, dealing with the revival, has application only if the application for execution on the face of it was made more than twelve years after the date of the decree. In the present case the application for execution (No. 524 of 1940) is within twelve years and therefore Article 183 is no bar to the execution of the decree.

3. It was argued that the application for execution is not in the form required by Order XXI, Rule 11, because it does not specify one of the several modes mentioned in that rule in which the assistance of the Court is required. The decree-holders' contention is that they do not know of any property which the plaintiff owns and which they can attach. They also point out that they have no materials on which they could press the Court to order the arrest and detention of the judgment-debtor. Under the circumstances they have no remedy except to apply to the Court only to revive the decree, in the hope that if the judgment-debtor acquires property hereafter, the decree may be executed against him. An enquiry in the office shows that under the heading 'Mode in which assistance of the Court is required' in the application for execution, a statement that a notice be issued under Order XXI, Rule 22, is one of the normal statements. I do not think under the law as it exists this is an irregular entry in an application for execution. I do not think the application for execution containing these words in the last column is irregular and should not be considered a proper application for execution as required under Order XXI, Rule 11, The discussion about the date of the notice under Order XXI, Rule 22, the date of its service and the date on which the Court makes the order thereon (i.e. to-day for this purpose) are quite irrelevant. In the present case it may however be noted that the date on which the notice was in fact issued is within the period of twelve years and it is that notice which the Court is disposing of to-day. No case has been cited in which a notice issued within time but disposed of by the Court after twelve years, has been held not to give the plaintiff the right claimed by him. I have already pointed out that in this case this discussion is not material. The first objection therefore fails.

4. On the second point, sitting as a Court in execution, I cannot take notice of any alleged settlement which is not certified on the decree. That objection therefore also fails.

5. Notice is therefore made absolute. Costs Rs. 50 allowed.


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