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Shri Paul Chandra Vs. Durga Dutt - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1647 of 1974
Judge
Reported inAIR1982All213
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 63; Limitation Act, 1963 - Schedule - Article 137
AppellantShri Paul Chandra
RespondentDurga Dutt
Appellant AdvocateH.P. Varshney, Adv.
Respondent AdvocateV.P. Varshney, Adv.
DispositionAppeal allowed
Excerpt:
.....appeal was pending in the high court, the execution as well as objections be suspended and consigned to record room. the application that has been made could at best be treated to be an information to the execution..........orders on it. on 9-5-1973 an application was moved by the decree-holder to revive the original execution application no. 278 of 1957 which had been consigned without orders. that application had been dismissed by time and the decree-holder has failed to execute the decree within 12 years as provided by article 136 of the new limitation act. in the instant case, the court below has further held that article 137 applied to the application in which there was no period of limitation prescribed under the limitation act. the limitation under article 137 is three years and as the application for reviving the application has been moved beyond the period of three years from the decision of the high court. the application was time barred.3. the learned counsel for the appellant drew my.....
Judgment:

K.M. Dayal, J.

1. This execution Second Appeal has been filed by the decree-holder. The decree-holder obtained a decree against Durga Datt on 30-10-1956 in Suit No. 242 of 1953. The decree was put into execution on 26-11-1957, in execution case No. 278 of 1957. Several properties were attached in execution. Objections were filed by several persons claiming shares in the properties and claiming some of the properties exclusively. Objections were partly allowed under Order 21, Rule 58 C.P.C. on 12-5-1958 and 2-8-1958. Thereafter two suits were filed, one by the decree-holder-appellant (Suit No. 73 of 1959) under Order 21, Rule 63 C.P.C. The other suit was filed by Lalit Kishor and others under Order 21, Rule 63 C.P.C. which was numbered as Suit No. 401 of 1958. These suits were finally decided in Second Appeals Nos. 1744 and 1945 of 1961 on 22-12-1967 by this Court.

2. In the meantime during pendency of Second Appeals in this court under Order 21, Rule 58 C.P.C. the execution was consigned to Record Room without any final orders on it. On 9-5-1973 an application was moved by the decree-holder to revive the original execution application No. 278 of 1957 which had been consigned without orders. That application had been dismissed by time and the decree-holder has failed to execute the decree within 12 years as provided by Article 136 of the new Limitation Act. In the instant case, the court below has further held that Article 137 applied to the application in which there was no period of limitation prescribed under the Limitation Act. The limitation under Article 137 is three years and as the application for reviving the application has been moved beyond the period of three years from the decision of the High Court. The application was time barred.

3. The learned counsel for the appellant drew my attention to paper No. 80/50. By that paper, the counsel for the parties gave a statement that as the Second Appeal was pending in the High Court, the execution as well as objections be suspended and consigned to Record Room. The order sheet of 14-10-1963 shows that the Courts passed an order on the agreement of the counsel to consign the execution to the Record Room. The last words of the order are, 'Consign as prayed' in English. Thereafter it appears that the execution remained in a dormant state, but whether for its revival an application in writing was required or not, has to be seen. There was no direction in the order that the parties will have to make an application for reviving the execution. Once the appeal in the High Court was decided and the decision of appeal was communicated to the Execution Court, it was the duty of the Execution Court to proceed with the execution in accordance with the judgment of the High Court. It was not necessary for any party to make any application for the said purpose. The restoring of the proceedings in the execution in pursuance of the order of the High Court was merely a ministerial act and not a judi-cial act.

4. Under these circumstances no application making a prayer for revival of execution was required. The learned counsel for the appellant has relied upon a case, reported in AIR 1952 Pepsu 52, Mangal Singh v. Court of Wards. The following was held in that case. Where it was the duty of the Court to do a particular thing suo motu independently of any application that might be made, or where the thing to be done was purely of a ministerial character, an application though made, was not governed by the residuary Article. The learned counsel argued that as the execution court was bound to execute the decree after the decision of the High Court in the appeal and it was its duty to proceed with the same, no application by either party was required. Under the circumstances even though the applicant applied for revival of the execution, it was just an information to the court about the result of the Second Appeal in the High Court. Even if there was no prayer in application for revival of the execution, the execution Court was bound to revive it. Under the circumstances no application was required in law to be made for the said purpose. The application that has been made could at best be treated to be an information to the execution court. Under these circumstances Article 180 of the Limitation Act of 1908 or Article 137 of the new Limitation Act would have no application. Consequently, there was no question of the application being time barred. The execution remained pending according to the agreement of the parties' counsel, till the decision of the appeal of the High Court. Thereafter there was no such consent. The moment, execution court was informed of the decision, it had every authority to proceed with the execution even without an application for that purpose. In this view of the matter the appeal deserves to be allowed. After the decision of the suit under Order 21 Rule 63 C. P. C. finally by the High Court, on 22-12-1967, the Execution Court should have revived the execution suo motu, if the revival was not made either of the parties could have drawn the attention of the court to the fact of decision of the Second Appeal. Under the circumstances the courts below were not correct in applying Article 137 to the application of the decree-holder. Consequently the judgment and order passed by the courts below in execution case No. 278 of 1957 rejecting the application for proceedings with the execution as time barred, are set aside.

5. The appeal is allowed and the Execution Court is directed to proceed with the execution expeditiously.


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