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Saklu Chaudhari and anr. Vs. Harbansdeo Rai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All660; 95Ind.Cas.26
AppellantSaklu Chaudhari and anr.
RespondentHarbansdeo Rai
Excerpt:
- - 3. although the application for transfer of the decree dated 14th august 1923 was itself not an application for execution of the decree it might very well be treated as an application for taking a step-in-aid of execution......the decree was transferred to dearia and in this latter court the appellants put in the present application on 5th may 1924 for execution of that decree. both the courts below have held that the application is barred by time.3. although the application for transfer of the decree dated 14th august 1923 was itself not an application for execution of the decree it might very well be treated as an application for taking a step-in-aid of execution. but this circumstance cannot extend the period of 12 years fixed by section 48, civil p.c. the only way in which the learned advocate for the appellants finds it possible to argue the cause is that the last application of 5th may 1924 was in continuation of the previous application of the 14th august 1923. he relies on the case of umrao.....
Judgment:

Sulaiman, J.

1. This is a decree-holder's appeal arising out of execution proceedings, The Kayesth Banking and Trading Corporation obtained a simple money decree on 14th August 1911 against Harbans. The Corporation has transferred the decree to the present appellants.

2. It is not disputed that the execution of this decree was kept alive till 14th August, 1923 when the present appellants made an application in the Court that passed the decree for transfer of that decree to another Munsif. This application however was made on the last day of the expiry of 12 years from the date of the decree. There was naturally some delay in making the order which was made subsequently. The decree was transferred to Dearia and in this latter Court the appellants put in the present application on 5th May 1924 for execution of that decree. Both the Courts below have held that the application is barred by time.

3. Although the application for transfer of the decree dated 14th August 1923 was itself not an application for execution of the decree it might very well be treated as an application for taking a step-in-aid of execution. But this circumstance cannot extend the period of 12 years fixed by Section 48, Civil P.C. The only way in which the learned Advocate for the appellants finds it possible to argue the cause is that the last application of 5th May 1924 was in continuation of the previous application of the 14th August 1923. He relies on the case of Umrao Singh v. Lachmi Narain (1904) 26 All 361 and the case reported as Beni Madho v. Sheo Narain (1907) 4 ALJ 405. In these cases the application was governed by Article 118 of the old Limitation Act corresponding to Article 183 of the new Act which gives 12 years from the date of the revival of a judgment or decree or order of a Court established by a Royal Charter or an order by His Majesty in Council. That Article obviously is not applicable to the present case.

4. The application for execution was of an entirely different nature from the application for the transfer of the decree to the Dearia Court and therefore the latter can in no sense be treated as one incontinuation of the former application. I am fortified in this view by the opinion of the learned Judges who decided the case reported as Khetpal v. Tikam Singh (1912) 34 All 396. The appeal is accordingly dismissed with costs.


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