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Mt. Basanti Vs. Sirdar Mal-hardit Rai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All802
AppellantMt. Basanti
RespondentSirdar Mal-hardit Rai
Excerpt:
- - against the decision of the court of first appeal the judgment-debtor filed an appeal in the high court which appeal was dismissed on the 3rd november 1921. the present application for execution was filed by the decree-holder on the 9th july 1924. 4. the court of first instance held that the contention of the decree-holder, that in computing the period of limitation she was entitled to exclude the time intervening between the 21st march 1918, the date on which the application was filed by the judgment-debtor, and the 3rd november 1921, the date of the decision of the high court, was not well founded. for these reasons the decision of the court of first instance was perfectly correct and ought to be restored......and arises under the following circumstances:2. the decree now under execution was obtained by the decree-holder firm on the 11th january 1915. an application for execution, before the application giving rise to the present appeal, was filed on the 27th february 1918, and it is admitted on all hands that application was issued to the judgment-debtor but was not served on her, and on the 14th march 1918, the execution court directed the decree-holder to take appropriate steps for the service of notice on the judgment-debtor till the 19th march 1918. this was not done by the decree-holder within the time allowed. the case was put up before the court on the 19th march 1918. on that date the judgment-debtor, though not served with a notice of the application for execution, appeared and filed.....
Judgment:

Iqbal Ahmad, J.

1. This is a judgment-debtor's execution second appeal and arises under the following circumstances:

2. The decree now under execution was obtained by the decree-holder firm on the 11th January 1915. An application for execution, before the application giving rise to the present appeal, was filed on the 27th February 1918, and it is admitted on all hands that application was issued to the judgment-debtor but was not served on her, and on the 14th March 1918, the execution Court directed the decree-holder to take appropriate steps for the service of notice on the judgment-debtor till the 19th March 1918. This was not done by the decree-holder within the time allowed. The case was put up before the Court on the 19th March 1918. On that date the judgment-debtor, though not served with a notice of the application for execution, appeared and filed an application to the effect that she had paid the entire decretal amount. On that date the execution Court ordered the execution case to be struck off.

3. Two days later, viz., on the 21st March 1918, an application was filed by the judgment-debtor praying that satisfaction of the decree be certified in accordance with the provisions of Order 21, Rule 2, Civil P. C. This application was opposed by the decree-holder but was allowed by the First Court on the 11th May 1918. On appeal by the decree-holder the decision of the First Court was reversed by the Court of first appeal on the 7th July 1920, and the application of the judgment-debtor filed by her on the 21st March 1918, was rejected. Against the decision of the Court of first appeal the judgment-debtor filed an appeal in the High Court which appeal was dismissed on the 3rd November 1921. The present application for execution was filed by the decree-holder on the 9th July 1924.

4. The Court of first instance held that the contention of the decree-holder, that in computing the period of limitation she was entitled to exclude the time intervening between the 21st March 1918, the date on which the application was filed by the judgment-debtor, and the 3rd November 1921, the date of the decision of the High Court, was not well founded. It pointed out that there was no bar to the execution of the decree after the 7th July 1920, when the Court of first appeal decided that the payment alleged by the judgment-debtor had not been made. In this view that Court held that the application for execution was time barred.

5. The decision of the Court of first instance has been reversed by the lower appellate Court. The lower appellate Court while agreeing with the Court of first instance that there was no bar to the execution of the decree by the decree-holder after the 7th July 1920, has held that the order dated the 9th March 1918, striking off the execution case should be treated as an order simply directing the record of the case to be consigned to the record room and has further held that the present application for execution filed by the decree-holder should be treated as an application asking for the revival of the former proceedings and that, if the present application is so treated, it is not barred by time. I am unable to agree with the decision of the lower appellate Court.

6. Even if the time between the 21st March 1918, and the 7th July 1920, be excluded in computing the period of limitation, the present application was filed more than 3 years after the order of the execution Court dated the 19th March 1918, striking off the execution case. After the 7th July 1920, when the Court of appeal rejected the application of the judgment-debtor, there was no bar to the execution of the decree and the present application was filed even more than 3 years after that date, even if by the order dated the 19th March 1918, the execution Court did not intend to dismiss the application for execution altogether and did intend merely to consign

the case to the record room pending the decision of the judgment-debtor's objection,

the present application for execution having been filed more than three years after the date of that order, and even more than 3 years after the 7th July 1920, when all bar to the execution of the decree was removed by the decision of the appellate Court, was barred by limitation. It has been held by a Full Bench of this Court in the case of Chhattar Singh v. Kamal Singh : AIR1927All16 that an application for revival of former proceedings in execution must: be made within 3 years from the date on which those proceedings were suspended. For these reasons the decision of the Court of first instance was perfectly correct and ought to be restored.

7. The learned Counsel for the respondent has relied on the case of Lalta Prasad v. Suraj Kumar A.I.R. 1922 All. 115. That case has no bearing on the present case. In that case. It was held that frivolous objections to the execution of a decree on the part of a judgment-debtor with a view to delay the execution of the decree amount to 'fraud' within the meaning of Section 48(2)(a), Civil P. C. That is a question that obviously does not arise in the present case.

8. I set aside the decree of the Court below and restore, that of the Court of first instance. Under the circumstances I direct the parties to bear their own costs.


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