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Balwant Singh Vs. Budh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtAllahabad
Decided On
Judge
Reported inAIR1920All174; (1920)ILR42All564
AppellantBalwant Singh
RespondentBudh Singh and ors.
Excerpt:
act no. ix of 1908 (indian limitation act), schedule i, article 181 - execution of decree--limitation--execution temporarily suspended by an injunction. - .....injunction restraining the opposite party from executing the decree in suit no. 38 of 1912. this suit was dismissed on the 26th of april, 1915, and with that dismissal the bar of the injunction came to an end. an appeal was filed in the high court on the 30th of november, 1915. it was finally dismissed on the 19th of april, 1917. the present application for execution, which may be taken as an application in continuation of the former application (which was struck off pending the decision of the suit no. 523 of 1914) was made on the 11th of june, 1918. objection was taken that the application was barred by time. the lower court upheld this objection and _ dismissed the application. it has relied upon a long series of decisions of both this and the bombay and calcutta high courts. the.....
Judgment:

Tudball and Sulaiman, JJ.

1. This appeal arises out of an application in execution proceedings. The appellant obtained a decree No. 38 of 1912 for sale of the hypothecated property on the 8th of July, 1912. This was made absolute on the 29th of August, 1913. The first application for execution was made on the 18th of April, 1914. While this application was pending the objectors instituted a suit No. 523, of 1914 on the 8th of December, 1914. for a declaration that the decree in suit No. 38 of 1912 had been obtained by fraud. On the 9th of December, 1914, they applied for and obtained an injunction restraining the opposite party from executing the decree in suit No. 38 of 1912. This suit was dismissed on the 26th of April, 1915, and with that dismissal the bar of the injunction came to an end. An appeal was filed in the High Court on the 30th of November, 1915. It was finally dismissed on the 19th of April, 1917. The present application for execution, which may be taken as an application in continuation of the former application (which was struck off pending the decision of the suit No. 523 of 1914) was made on the 11th of June, 1918. Objection was taken that the application was barred by time. The lower court upheld this objection and _ dismissed the application. It has relied upon a long series of decisions of both this and the Bombay and Calcutta High Courts. The last decision is that in Ruddar Singh v. Dhanpal Singh (1903) I.L.R. 26 All. 156. If we compare this last case with the case which is now before us, it is impossible to distinguish the one from the other. The decision referred to exactly covers the present case. Our attention was called to the decisions reported in Moin-ud-din Khan v. Chajju Singh (1905) 2 A.L.J. 276, and Qamar-ud-din Ahmad v. Jawahir Lal (1905) I.L.R. 27 All. 334. But a careful examination of both these decisions will show that they are not on all fours with the facts of the present case and do not help us. If we assume (and we think that it may fairly be so assumed) that the present application is one in continuation of the former, even then Article 181 of the Limitation Act must apply, and it was necessary for the appellant to come into court within three years of the removal of the bar which prevented his carrying on the execution of his decree. That bar was removed by the decision of the first court on the 26th of April, 1915. We are asked to give the appellant a further extension of time and to calculate the three years from the 19th of April, 1917, the date on which the High Court dismissed the appeal. We cannot see how this can possibly be done. The learned Counsel for the appellant admits that on the 27th of April, 1917, his client could legally have applied for execution as he has now applied and that there was nothing to prevent him carrying on the execution from that date onwards. It is, therefore, clear that time began to run against him after the decision of the 26th of April, 1915. We would point out that he is not entitled to much sympathy, for though the High Court had dismissed the appeal on the 19th of April, 1917, he still waited till the 11th of June, 1918, before he came to court. He has been negligent of his rights and the Law does not look with favour on persons or litigants of that description. The appeal, therefore, fails and is dismissed. We direct that each party pay its own costs in this matter in view of the circumstances of this case and the dishonest conduct of the opposite party.


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