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Raghunath Das Vs. Sri Kishan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberCivil Revn. No. 408 of 1948
Judge
Reported inAIR1950All248
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 9, Rule 9
AppellantRaghunath Das
RespondentSri Kishan
Appellant AdvocateLalta Prasad, Adv.
Respondent AdvocateS.N. Duvedi, Adv.
DispositionRevision dismissed
Excerpt:
- - ' it is evident from the order quoted above that the learned judge did not apply a judicial mind to the consideration of the application for restoration and although it appears that he was not satisfied that there was any sufficient cause for the restoration of the cases he made an order directing the execution cases to be restored being swayed by considerations which should not have influenced a court of law......there was any sufficient cause for the restoration of the cases he made an order directing the execution cases to be restored being swayed by considerations which should not have influenced a court of law.3. when the executions were proceeded with the judgment-debtor objected that the cases should not have been restored and that the execution was barred by limitation. as already stated above these objections were dismissed on the finding that the execution cases were restored because there were sufficient reasons for doing so. i find it difficult to understand how the reasons for restoration recorded in the order dated 17th march 1945, could be regarded to be sufficient reasons for restoration. the observation of the learned judge that there were sufficient reasons for restoring the.....
Judgment:
ORDER

Seth, J.

1. These two applications in revision are directed against an order of the Small Cause Court Judge of Kanpur by which objections to the execution of two decrees were disposed of and rejected by a common judgment.

2. The decrees under execution were obtained on 31st August 1929. The last application for execution was made in 1943 more than 12 years after the date of the decree. Limitation was, however, sought to be extended by relying on the Temporary Postponement of Execution of Decrees Act (U. P. Act X [10] of 1937). If the decree-holder was to get the benefit of this Act these applications for execution were within the period of limitation prescribed by Section 48, Civil P. C. The applications for execution were, however, struck off for default of prosecution on the part of the decree-holder on and March 1945. I have said that the applications for execution were struck off on 2nd March 1946, but I am not sure that this is the correct date on which these applications were dismissed for while 2nd March 1945, has been put down as the date under the signature of the presiding officer the date of the order mentioned in the second column of the order sheet is 24th February 1945. Be that as ill may, the decree-holder applied for restoration on 17th March 1945, and on that very date without any notice to the judgment-debtor the Court made the following order :

'The decree-holder has filed affidavit as per order on the reverse. I feel sure that nothing would come out of the execution, but I have decided to restore the execution case simply because I find that the decree-holder, who is an old (. . .?) man, is so much shocked that his health may materially suffer if this execution is not restored. In his old age he seems to have made it his aim of life to go on with the execution of these decrees. So out of leniency swayed by considerations mentioned above, under Section 151, Civil P. C. I restore the execution case.'

It is evident from the order quoted above that the learned Judge did not apply a judicial mind to the consideration of the application for restoration and although it appears that he was not satisfied that there was any sufficient cause for the restoration of the cases he made an order directing the execution cases to be restored being swayed by considerations which should not have influenced a Court of law.

3. When the executions were proceeded with the judgment-debtor objected that the cases should not have been restored and that the execution was barred by limitation. As already stated above these objections were dismissed on the finding that the execution cases were restored because there were sufficient reasons for doing so. I find it difficult to understand how the reasons for restoration recorded in the order dated 17th March 1945, could be regarded to be sufficient reasons for restoration. The observation of the learned Judge that there were sufficient reasons for restoring the execution cases does not correctly represent the state of affairs. Strictly speaking, therefore, the order of the learned Judge of the Small Cause Court under revision should be set aside and the order by which the execution cases were restored should also be set aside.

4. It appears to me, however, that I should decline to interfere in revision with the order of the Court below for two reasons. In the first place, the order sought to be revised is dated 17th August 1946, and these applications in revision were filed on 28th July 1948, nearly two years after the date of the order and are, there fore, extremely belated applications. In the second place, I have been informed that the applicant, Raghu Nath Das, died sometime in 1948. There is no affidavit to that effect but the fact remains that the learned counsel for the applicant has not put in any appearance at the hearing of these applications in revision, which shows that there is no intention to press these applications. For these two reasons I decline to interfere with the order of the Court below in the exercise of my revisional jurisdiction.

5. These applications in revision are dismissed, but there shall be no order as to costs.


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