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Bhan Datta Upadhia and anr. Vs. Mt. Tulsa Kuer - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1940All151
AppellantBhan Datta Upadhia and anr.
RespondentMt. Tulsa Kuer
Excerpt:
- - tulsa's suit failed. is therefore clearly obiter......applied for execution of their decree on 19th december 1930. an objection was preferred to the execution application by the judgment-debtors under section 47, civil p.c. this objection was dismissed on 15th august 1931. thereafter the execution application was transferred to the court of the collector. on 6th november 1931, one mt. tulsa, one of the judgment-debtors, filed a regular suit in which she sought to recover a sum of rs. 550 on the basis of a receipt, upon which the aforesaid objection to the execution of the mortgage decree under section 47, civil p.c., had been preferred. she obtained an order from the court staying the execution of the mortgage decree pending the result of her suit. under order 21, rule 29, civil p.c., the court stayed the execution of the decree 'till.....
Judgment:
ORDER

Thom, C.J. and Ganga Nath, J.

1. This is an execution second appeal which raises an important point of law. A mortgage decree was passed on 5th January 1928. A final decree under Order 34, Rule 5, Civil P.C., was passed in favour of the mortgagees on 9th August 1928. The decree-holders applied for execution of their decree on 19th December 1930. An objection was preferred to the execution application by the judgment-debtors under Section 47, Civil P.C. This objection was dismissed on 15th August 1931. Thereafter the execution application was transferred to the Court of the Collector. On 6th November 1931, one Mt. Tulsa, one of the judgment-debtors, filed a regular suit in which she sought to recover a sum of Rs. 550 on the basis of a receipt, upon which the aforesaid objection to the execution of the mortgage decree under Section 47, Civil P.C., had been preferred. She obtained an order from the Court staying the execution of the mortgage decree pending the result of her suit. Under Order 21, Rule 29, Civil P.C., the Court stayed the execution of the decree 'till the disposal of this suit.' This order was communicated to the Collector to whose Court the execution proceedings had been transferred. Upon receipt of this order, the Collector returned the record to the executing Court. The learned Munsif on receipt of the record ordered that the papers be filed and consigned to the record room. This order was passed on 3rd February 1932.

2. Mt. Tulsa's suit failed. A final decree of dismissal was passed on 14th February 1933. On 25th July 1935, the decree-holders applied for execution of the mortgage decree against Mt. Tulsa and the other judgment-debtors. The application was opposed by the judgment-debtors who contended that it was barred by time. The learned Civil Judge in the lower Appellate Court has sustained the objection of the judgment-debtors. Following certain decisions to which he refers in the course of his order he has held that the application made on 25th July 1935 having been made beyond three years from the final disposal of Mt. Tulsa's suit it was barred by limitation. In appeal it was contended for the decree-holders that the application of 25th July 1935, should be regarded merely as a step taken by the decree-holders to inform the executing Court that the bar to the execution proceedings had been removed and that it should not be regarded as either a fresh application for execution or an application to revive execution proceedings.

3. The question whether it is necessary for a decree-holder to make an application for revival of execution proceedings after a bar imposed by the Court to these execution proceedings has been removed is one which has not been specifically considered by this Court. It was held by a Full Bench of this Court in Chhattar Singh v. Kamal Singh that an application such as the application under consideration in this appeal, was not an application for execution but an application to revive execution proceedings and that it was not governed by Article 181 of Sch. 1, Limitation Act. It appears to have been assumed rather than decided that such a revival application was necessary. The Calcutta, Patna and Madras High Courts on the other hand have taken the view that it is not incumbent upon the decree-holder under the provisions of the Code of Civil Procedure to make any application for revival of execution proceedings upon the removal of a bar to these proceedings. The opinion of these Courts has been that in such circumstances it is the duty of the Court to proceed suo motu. The matter was discussed at length in Krishtokaminee Debi v. Girishchandra Mandal . The only case in which the question now raised was considered by this Court was Prem Narain v. Ganga Ram . That case was disposed of by a Bench consisting of Sulaiman and Niamtullah JJ. The question now raised was not discussed by Sulaiman J., but Niamtullah J., in the course of his judgment, observes:

It is not in my opinion necessary that a formal application for reviving the proceeding should be made. It is the duty of the Court to proceed to conclusion in a matter pending before it, even though it may be to dismiss the application in default of prosecution. Assuming that an application to 'revive' proceedings is essential I have no doubt that the second application fulfills, in substance, all the requirements of an application for 'reviving' execution proceedings in abeyance. Where it is the duty of the Court to do something or to take some action Article 181, Limitation Act, does not govern an application asking the Court to do such a thing or to take such action.

4. The learned Judge then proceeds to dispose of the question before the Bench for decision upon the assumption that Article 181 was applicable. The expression of opinion above quoted by Niamatullah J. is therefore clearly obiter. The question appears to us to be one of general importance which in our view should be considered and decided by a Full Bench. Let the record be laid before the Chief Justice for the constitution of a Full Bench to dispose of the appeal.


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