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Kesho Ram Vs. Mt. Suraj Balli - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1949All751
AppellantKesho Ram
RespondentMt. Suraj Balli
Excerpt:
- - the learned judge of the court of small causes on a consideration of the matter came to the conclusion that the objection raised by the judgment-debtor was well-founded and dismissed the application for execution. this contention is obviously 'well founded. ..4. on a consideration of the whole matter, it is clear to my mind that the application for execution in this case was barred by limitation apparently the decree-holder, or his advisers, counted upon reckoning the period of limitation from the 31st december 1940, the date of the expiry of the united provinces stay of execution of decrees (civil courts) act of 1938. but this was clearly a mistaken view of the law......order, so far as it concerned the application for transferring the decree to another court, is passed. learned counsel has also invited my attention to the decision of a full bench of this court in the case of mohammad taqi khan v. raja ram and ors : air1936all820 the full bench has indicated the) meaning of the expression 'final order' in cl.(5) of article 182. it has been made clear that the expression 'final order' does not necessarily mean the order which finally adjudicates upon the rights of the decree-holder on the one hand and the rights of the judgment-debtor on the other. at p. 1149 the learned judges have made this important observation:we think that where the court intends to dispose of the matter completely and no longer keep it pending on its file, and does not merely.....
Judgment:
ORDER

Wali-Ullah, Ag. C.J.

1. This is an application in revision under Section 25, Small Cause Courts Act directed; against an order passed by a learned Judge of the Small Cause Court allowing an objection raised by the judgment-debtor to the effect that the application for execution was barred by limitation.

2. It appears that a simple money decree was passed on 22nd of November 1933, in favour of Sahdeo Kalwar, predecessor-in-interest of Kesho Ram, the applicant. The first application for execution was made on 2nd October 1936. It seems that there was some slight defect in this application inasmuch as the numbering of the suit was not correctly set out in the application. Next, we find that on 4th January 1937, an application was made by the decree-holder which contained a prayer that the decree be transferred to Deoria. The learned Judge of the Small Cause Court at Gorakhpur thereupon, on 30th January 1937, passed an order directing the transfer of the decree to the Court at Deoria and also issued the necessary certificate as required by Section 39, Civil P.C. Thereafter it appears that the certificate was duly transmitted to the Court at Deoria but the decree-holder appears to have taken no steps for over a year for the purpose of the execution of the decree. The execution application was thereupon returned by the Deoria Court to the Court at Gorakhpur. On its receipt it appears to have been consigned to the record room. Learned Counsel for the applicant has contended that this consignment of the application to the record room took place on 31st May 1938, when the Court at Gorakhpur passed what he calls the 'final order' within the meaning of Sub-clause (5) of Article 182, Limitation Act. The third application for execution came to be filed on 3rd January 1944. On notice of this application the judgment-debtor raised the objection that the application was beyond time. The learned Judge of the Court of Small Causes on a consideration of the matter came to the conclusion that the objection raised by the judgment-debtor was well-founded and dismissed the application for execution.

3. Learned Counsel for the decree-holder applicant has contended in the first place that the period of time between 1st January 1938, to 31st December 1940, must be excluded in reckoning the period of limitation inasmuch as during this period the United Provinces Stay of Execution of Decrees (Civil Courts) Act, 1938, was/in operation. This contention is obviously 'well founded. Next it is contended that the Court below was in error inasmuch as it reckoned the period of limitation for the present application for execution from the 30th January 1937. The contention of the learned Counsel is that the '''final order' within the meaning of Sub-clause (5) of Article 182, Limitation Act was passed only on 31st May 1938, and, therefore, limitation should be reckoned from that date and not from 30th January 1937, when the certificate was directed to be issued and the transfer of the decree to the Court at Deoria was directed. Mr. Kedar Nath Sinha, learned Counsel for the opposite party, on the other hand, contends that the Court below has very rightly reckoned the period of limitation from 30th January 1937, the date when the proceedings in so far as they concerned the Court at Gorakhpur terminated. His contention that the application made by the decree-holder on 4th January 1937, was merely an application or taking a step-in-aid of execution, that this application was finally disposed of on 30th January 1937, when the Court directed the transfer of the decree along with the certificate as provided by Section 39, Civil P.C. My attention has been invited to (i) the case of Hafiz Uddin v. (Firm) Parshadi Lal Manohar Lal : AIR1935All757 , a case decided by a learned Single Judge of this Court (ii) the case of Punjab National Bank Ltd. v. Dina Nath A.I.R. (21) 1934 Pesh. 23, and (iii) the case of (Firm) Ramnarayan Jagannath v. Radhagovinda Debnath : AIR1940Cal557 . In' each one of these three cases, a learned Judge of the Court concerned has interpreted the expression 'final order' as used in Sub-clause (5), of Article 182, Limitation Act in the sense contended for by the learned Counsel for the opposite party. It has been held in each one of these cases that so far as the original Court is concerned the proceedings in it terminated when once it passed an order transferring the decree to another Court and directed the issue of the necessary certificate. At that stage the final order, so far as it concerned the application for transferring the decree to another Court, is passed. Learned Counsel has also invited my attention to the decision of a Full Bench of this Court in the case of Mohammad Taqi Khan v. Raja Ram and Ors : AIR1936All820 the Full Bench has indicated the) meaning of the expression 'final order' in cl.(5) of Article 182. It has been made clear that the expression 'final order' does not necessarily mean the order which finally adjudicates upon the rights of the decree-holder on the one hand and the rights of the judgment-debtor on the other. At p. 1149 the learned Judges have made this important observation:

We think that where the Court intends to dispose of the matter completely and no longer keep it pending on its file, and does not merely suspend the execution or consign the record to the record room for the time being, the order must be deemed to be a final order, which will give a fresh start for purposes of limitation....

4. On a consideration of the whole matter, it is clear to my mind that the application for execution in this case was barred by limitation Apparently the decree-holder, or his advisers, counted upon reckoning the period of limitation from the 31st December 1940, the date of the expiry of the United Provinces Stay of Execution of Decrees (Civil Courts) Act of 1938. But this was clearly a mistaken view of the law.

5. The result, therefore, is that the present application is dismissed with costs.


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