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Girdhari Lal Vs. Ram Charan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All331; 94Ind.Cas.613
AppellantGirdhari Lal
RespondentRam Charan Lal
Excerpt:
.....v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - that objection was unsuccessful; dasrath tiwari (1911) 33 all 517. the views taken in these cases was that where an application for execution had been made within the period of limitation and granted, that is execution had been ordered in accordance with the prayer of the decree-holder, the right of the decree-holder to obtain execution will not necessarily be defeated, if by reason of objections on the part of the judgment-debtor or action taken by the court or other cause, for which the decree-holder was not responsible, the final completion of the proceedings in execution initiated by the application could not have been obtained within the period provided by law;.....in terms of the application directing further proceedings in connexion with the sale. while the sale proceedings re-started by the collector were pending, an objection was filed by mt. parbati, one of the judgment-debtors that the order reinstating the proceedings was irregular, and that the decree was really barred by time. that objection was unsuccessful; and it was held by the court, which had passed that decree and before which the execution proceeding was pending, that it had power to revive the previous execution proceeding which had been dismissed for no default of the decree-holder and without his knowledge; and that order was afterwards upheld on appeal.3. girdhari lal, another judgment-debtor, then intervened and filed the objection which has given rise to the present.....
Judgment:

Kanhaiya Lal, J.

1. This appeal arises out of an execution proceeding and the sole question for consideration is whether the application is barred by limitation. It appears that a decree was obtained by Ram Charan against Girdhari Lal, the predecessor of the present appellant, and certain other parsons on the 30th July 1910. The last application for execution was made on the 30th July 1921; and in execution of that decree certain ancestral property was ordered to be sold. The proceeding connected with the sale were transferred to the Collector under Section 68 of the Civil P.C. The Collector fixed a date for holding the sale but on that date there was no bidder; and as the decree-holder was not present at the time to ask for further action he sent the papers back to the Court which had directed the sale. The papers reached the Court on the 24th February 1923 and it passed an order on She same day striking out the execution proceeding for default.

2. On the 26th February 1923 the decree-holder made an application stating that he was present on the date the auction was held and had just gone outside for a short time when the sale officer passed an order returning the papers. He prayed that the papers may be sent back to the Collector for proceeding with the sale. The Court thereupon passed an order in terms of the application directing further proceedings in connexion with the sale. While the sale proceedings re-started by the Collector were pending, an objection was filed by Mt. Parbati, one of the judgment-debtors that the order reinstating the proceedings was irregular, and that the decree was really barred by time. That objection was unsuccessful; and it was held by the Court, which had passed that decree and before which the execution proceeding was pending, that it had power to revive the previous execution proceeding which had been dismissed for no default of the decree-holder and without his knowledge; and that order was afterwards upheld on appeal.

3. Girdhari Lal, another judgment-debtor, then intervened and filed the objection which has given rise to the present appeal, urging that the application for execution was barred by time and that the order of the Court sending the papers again to the Collector after the Collector had returned them was contrary to law. The Courts below have disallowed that objection, relying on the decisions in Rahim Ali Khan v. Phul Chand (1896) 18 All 482 and Ram Sarup v. Dasrath Tiwari (1911) 33 All 517. The views taken in these cases was that where an application for execution had been made within the period of limitation and granted, that is execution had been ordered in accordance with the prayer of the decree-holder, the right of the decree-holder to obtain execution will not necessarily be defeated, if by reason of objections on the part of the judgment-debtor or action taken by the Court or other cause, for which the decree-holder was not responsible, the final completion of the proceedings in execution initiated by the application could not have been obtained within the period provided by law; and that further applications of the decree-holder to the Court executing the decree to go on from the point where the execution proceedings had been arrested and to complete the execution of his decree would be regarded as applications merely ancillary to the substantive application and no question of limitation under Section 320 of the old. Civil P.C. would, in those circumstances, arise.

4. It is urged on behalf of the judgment-debtor that if the order of 26th February 1923 was passed under Order 47, Rule 1 of the Civil P. C, it was without jurisdiction, as no notice had been issued to the judgment-debtor before that order was passed. It is further urged that Order 9, Rule 13 was inapplicable to an execution proceeding and the Court was not competent to set aside its previous order of the 24th February 1923 behind the back of the judgment-debtor. The application made by decree-holder did not recite the provisions under which it was made. It was either an application for review under Order 47, Rule 1 of the Civil P.C. or an application to the Court to rectify its previous order and to revive the proceedings under Section 151 of the Civil P.C. When the order of the 24th February 1923 was passed, no notice appears to have been given to the decree-holder of the report which had been received from the sale officer; and no opportunity was granted to him to take further proceedings in the case. Even the sale officer had omitted to grant time to the decree-holder to take further proceedings in the matter. The decree-holder was not responsible, if there was no bidder present at the time of the auction, much less could he have been responsible for the alleged default if no notice had been given to him by the Court, before which the execution proceeding was pending, of the papers having bean received back, nor opportunity to take further steps in execution of his decree, The order was passed ex parte as soon as the report of the sale officer was received; and it was open to the Court, which passed that order, when the omission was brought to its notice, to set aside its order and to restore or revive the proceeding under Section 151 of the Civil P.C. If it purported to act under Order 47, Rule 1 of the Civil P. C, it was incumbent on it to give notice of the application filed by the decree-holder to the opposite party; but after the order was passed, no steps appear to have been taken so long by any of the judgment debtors to challenge the propriety of that order. The first objection was filed by Mt, Parbati on the 9th July 1923, that is, about five months after that order was passed, and the last by Girdhari Lal, on the 10th May 1924, that is, about fifteen months from the date of that order. No appeal or application in revision was filed to challenge the legality of that order; and it is too late for the judgment-debtor now to question its propriety. The judgment-debtor is obviously seeking by means of this petition to gain time. He and his co-judgment-debtors have succeeded in getting the sale put off from time to time and they have succeeded in that object this time again; and, as the Courts below have pointed out, his objection is frivolous and has no force. The order reviving or restoring the execution proceeding was not passed without jurisdiction; and even if it was irregular that irregularity was cured by the fact that it remained unchallenged so long; and the decree is not barred by time.

5. It is urged that the judgment-debtor appellant had no notice of that order; but as the sale proceeding went on before the sale officer for over fifteen months after that order was passed, he could hardly have remained ignorant of it.

6. The appeal fails and is dismissed with costs.


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