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Mt. Sahodra and anr. Vs. Bhagwan Das - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1926All473; 94Ind.Cas.482
AppellantMt. Sahodra and anr.
RespondentBhagwan Das
Excerpt:
- .....the execution was stayed but the attachment was maintained, and the judgment-debtor, was granted a year's time to pay the decretal money. the present application is within time from the expiry of the said year and if the period for which the execution was stayed be excluded under section 15 of the indian limitation act, also from the date on which the above compromise was filed.2. the courts below held that the application for execution was not barred by time because the judgment-debtor was granted a year's time for the payment of the decretal money. the present application was made under section 39 of the civil p. c, for the transfer of the execution of the decree and as such was not an application for execution within the meaning of order 21, rule 10 of the civil p.c., but an.....
Judgment:

1. The sole question for determination in this case is whether an application for the transfer of execution of a decree to the Court of the Subordinate Judge, Lucknow, made by a decree-holder on the 2nd of January 1924, was barred by limitation. The decree in question was passed on the 16th December 1919 and was transferred for execution to the Court of the Subordinate Judge of Lucknow, where some property was attached, but on an application made by the decree-holder, and Mt. Ramjanki the principal judgment-debtor, representing the estate of the original debtor, the execution was stayed but the attachment was maintained, and the judgment-debtor, was granted a year's time to pay the decretal money. The present application is within time from the expiry of the said year and if the period for which the execution was stayed be excluded under Section 15 of the Indian Limitation Act, also from the date on which the above compromise was filed.

2. The Courts below held that the application for execution was not barred by time because the judgment-debtor was granted a year's time for the payment of the decretal money. The present application was made under Section 39 of the Civil P. C, for the transfer of the execution of the decree and as such was not an application for execution within the meaning of Order 21, Rule 10 of the Civil P.C., but an application to take a step-in-aid of execution, governed by the residuary Art, 181 of the Indian Limitation Act which allows a period of three years from the date when the right to apply accrues. The right to apply accrued in this case when the period of a year for which the stay was granted expired. But whether we apply Article 181 or Article 182 read with Section 15 of the Indian Limitation Act, the application is within time.

3. The learned Counsel for the judgment-debtors applicants; has referred to the decision in Sitla Din v. Sheo Prasad (1881) 4 All 60 and Balchand v. Raghunath Das (1881) 4 All 155. But both these cases were decided when Act XV of 1877 was in force Section 15 of which was confined to suits, the institution of which might be stayed by an injunction or order. Section 15 of the Indian Limitation Act now in force, however,, applies to suits and execution proceedings alike.

4. The appeal fails and is dismissed with costs including fees in this Court on the higher scale.


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