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(Siri) NaraIn Tewari and anr. Vs. Brij NaraIn Rai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All326
Appellant(Siri) NaraIn Tewari and anr.
RespondentBrij NaraIn Rai and anr.
Excerpt:
.....appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - where a decree is not immediately executable and the right to apply for execution depends upon the fulfilment of certain contingencies provided for in the decree, article 182 is clearly inapplicable and the only article governing the execution is the residuary article 181. this view receives support from the decision of this court in rukmina kuer's case [1919] 51 i. we hold therefore that the application having been made more than three years from the date when the decree was passed is clearly time-barred under article 181. 6. we have considered the case..........the. defendants to the action were raja bahadur brij narain rai and rai jagdish narain rai. the decree passed against them was for delivery of possession of a one anna seven pie and 10 chhatak zamindari share of a village called kat kuian. the decree was not unconditional. it provided that the right to possession was contingent upon mt. jokhna depositing in the court to the credit of brij narain rai and jagdish narain rai a sum of rs. 2,499-15-0. no date for payment of this sum was specified in the decree.3. mt. jokhna died. she did not fulfil the condition in her lifetime; nor did she apply for the execution of the decree. the present application for execution was made by her sons and heirs on 31st, july 1928. the application was presented in a certain court in gorakhpur. that court.....
Judgment:

Sen, J.

1. This is an appeal by the decree-holders and the only question raised in the appeal is one relating to limitation.

2. Mt. Jokhna Tewarin obtained a decree against a number of persons from the Court of the Additional Subordinate Judge of Gorakhpur in Suit No. 198 of 1911 on 28th August 1912. Amongst the. defendants to the action were Raja Bahadur Brij Narain Rai and Rai Jagdish Narain Rai. The decree passed against them was for delivery of possession of a one anna seven pie and 10 chhatak zamindari share of a village called Kat Kuian. The decree was not unconditional. It provided that the right to possession was contingent upon Mt. Jokhna depositing in the Court to the credit of Brij Narain Rai and Jagdish Narain Rai a sum of Rs. 2,499-15-0. No date for payment of this sum was specified in the decree.

3. Mt. Jokhna died. She did not fulfil the condition in her lifetime; nor did she apply for the execution of the decree. The present application for execution was made by her sons and heirs on 31st, July 1928. The application was presented in a certain Court in Gorakhpur. That Court returned the application to the decree-holders for presentation to the proper Court on the ground that the 'original Court which had passed the decree in favour of Mt. Jokhna had been abolished. Thereupon the application was presented by the representatives of the original decree-holder in the Court of the Subordinate Judge of Gorakhpur on 13th September 1928. Money was deposited to the credit of Raja Bahadur Brij Narain Rai and Jagdish Naraia Rai on 30th September 1928.

4. The application was resisted on the ground that it was barred by limitation. This contention prevailed with the first Court which held that the claim was barred by the application of Article 182, Lim. Act. The lower appellate Court has confirmed the decree of the trial Court, but has differed as regards the specific article which is applicable to the facts of the case. The lower appellate Court came to the conclusion that the article applicable to the case was Article 181 and not Article 182. It has been contended by the learned advocate for the decree-holders that in view of the matter the application for execution is not time-barred, and reliance has been placed upon a ruling of a Divisional Bench of this Court in Re. Mt. Rukmina Kuar v. Sheo Dat Rai [1919] 51 I.C. 576.

5. We have already noticed that a conditional decree for possession of mauza Kat Kuian was passed in favour of the original decree-holder. This decree for possession however was not capable of execution on the date on which it was passed and required a further application fulfilling the condition contained in the decree. Article 182, Lim. Act, therefore did not apply to a decree of this description. The article applicable was Article 181. Limitation would run from the date on which the right to apply accrued under Col. 3, Schedule 2, Lim. Act. The right to apply for possession did not accrue till the money was paid to the credit of the persons concerned, but the right to apply that the money be deposited to the credit of Brij Narain Rai and Jagdish Narain Rai accrued at once. The decree-holder had the right to apply that the money be deposited to the credit of defendants 8 and 9 on the very day that the decree was passed, and there was nothing to preclude her from depositing the amount and asking for possession. Where a decree is not immediately executable and the right to apply for execution depends upon the fulfilment of certain contingencies provided for in the decree, Article 182 is clearly inapplicable and the only article governing the execution is the residuary Article 181. This view receives support from the decision of this Court in Rukmina Kuer's case [1919] 51 I.C. 576, which has already been adverted to and also from the decision of the Privy Council in Rameshwar Singh Bahadur v. Homeshvar Singh A.I.R. 1921 P.C. 31. Where under the terms of a decree the right of the decree-holder to recover possession of some property in the hands of the defendants is contingent upon the decree-holder paying certain sums of money to the defendants but no date far payment is specified the decree-holder is entitled to pay the money on the date when the decree was passed and to ask for possession immediately after the payment had been made. The right accrues to the decree-holder immediately and at once, and the! decree-holder is not entitled to prolong) the date of payment by his or her in-action or laches. We hold therefore that the application having been made more than three years from the date when the decree was passed is clearly time-barred under Article 181.

6. We have considered the case in all its aspects, We think that the view taken by the Court below is right. We therefore dismiss this appeal with costs including in this Court fees on the higher scale.


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