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Collector of Benares and anr. Vs. Jai NaraIn Rai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All89; 173Ind.Cas.428
AppellantCollector of Benares and anr.
RespondentJai NaraIn Rai
Excerpt:
- .....and finally on 3rd november 1933 the decree-holder obtained an order for the transfer of the decree for execution to the court of the munsif of benares. thereafter on 6th october 1934, more than 12 years after the decree had been passed, he made an application to the munsif for the execution of the decree. this application was obviously barred by time under the provisions of section 48, civil p.c., but the report of the munsif's office upon the application was that it was within time. a notice was issued under the provisions of order 21, rule 22, civil p.c., and thereafter attachment of a house was directed. the judgment-debtor made an objection under section 60, civil p.c. upon the ground that he was an agriculturist. when that objection was dismissed, his brother made an.....
Judgment:

Allsop, J.

1. This is a second appeal against an order refusing to confirm a sale in execution of a decree. The decree was obtained from the Court of Small Causes at Benares on 8th November 1921. It appears that infructuous attempts were made to execute this decree and finally on 3rd November 1933 the decree-holder obtained an order for the transfer of the decree for execution to the Court of the Munsif of Benares. Thereafter on 6th October 1934, more than 12 years after the decree had been passed, he made an application to the Munsif for the execution of the decree. This application was obviously barred by time under the provisions of Section 48, Civil P.C., but the report of the Munsif's office upon the application was that it was within time. A notice was Issued under the provisions of Order 21, Rule 22, Civil P.C., and thereafter attachment of a house was directed. The judgment-debtor made an objection under Section 60, Civil P.C. upon the ground that he was an agriculturist. When that objection was dismissed, his brother made an application under Rule 58 of Order 21, but that also was dismissed. The sale of the house was held on 10th July 1935. The sale was to have been confirmed on 13th August 1985, but on 12fch August, the judgment-debtor made an application saying that the sale should not be confirmed because the application for execution was barred by limitation.

2. The Courts below have both held that the sale could not be confirmed because the application was barred. It is argued in appeal that the judgment-debtor should not have been allowed to raise the point of limitation at so late a stage in the proceedings. It is suggested that he made no objection when notice was issued to him under Order 21, Rule 22, and therefore the Court directed that execution should proceed. When he made an objection at a later stage, he did not raise the point of limitation. It seems to us that no question of res judicata can arise, because it has been held by a Full Bench of this Court in Genda Lal v. Hazari Lal : AIR1936All21 that an order passed in execution on the question of limitation cannot operate as res judicata unless the point has been specifically decided or unless it must be inferred as a matter of necessary implication that a decision has been arrived at that the application was within time. Thus, if an application for execution is made and the final result is that the decree becomes in some measure fructuous, it must be assumed that the point of limitation has been decided, because otherwise the result would not have been reached, On the other hand, when an application for execution is made and is finally dismissed as in fructuous, it cannot be inferred necessarily that the question of limitation has been decided. In the case before us, we do not think that we can infer that the question of limitation was decided at any stage of the proceedings. The proceedings were still open when the Court executing the decree refused to confirm the sale and the result of that order was that the decree remained in fructuous. It is obvious that the Court did not ever specifically go into the question of limitation. It has been urged that the sale having been held, the Court was bound to confirm it unless an objection was validly taken under Order 21, Rule 89, 90 or Rule 91. It seems to us that it cannot be said that in no circumstances can a Court refuse to confirm a sale upon grounds other than those mentioned in those rules. It may be, for instance, that one of the parties has died before the sale has taken place or that an application has been made under some Act which prevents the Court from proceeding or the Court discovers that the property is not saleable under statute. There may also be other reasons which would prevent the Court from confirming a sale. In the present case it was the duty of the Court to see that the application was within time when it was made. If this had been an application to which the provisions of the Limitation Act applied, there is a definite provision in that Act that the Court shall decide questions of limitation even if they are not raised in defence. It seems to us that the same principle applies to Section 48, Civil P.C., because that section says in the strongest language that no order for execution of a decree shall be made upon a fresh application presented after the expiry of a period of 12 years. As the duty was upon the Court to see that the application was within time and as the matter was brought to the notice of the Court before the Court finally disposed of the proceedings before it, we have no doubt that the Court was entitled to refuse to confirm the sale. We therefore consider that there is no force in this appeal and we dismiss it with costs.


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