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Jurawan and ors. Vs. Mahabir Dube and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in44Ind.Cas.24
AppellantJurawan and ors.
RespondentMahabir Dube and anr.
Cases Referred and Perumal Naickar v. Davood Rowther
Excerpt:
civil procedure code (act v of 1908), section 48, order xx, rule 11 - 'subsequent order', meaning of--scope of section 48--limitation act (ix of 1908), section 15, applicability of, to section 48 of civil procedure code--'prescribed', scope of--order granting time to judgment-debtor, whether order staying execution. - - but if the argument put forward by the decree-holder is good, it would equally apply to a case where the decree had been merely transferred to another court for execution......time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.'4. in the first place, the order of the 23rd of september was not strictly an order staying the executioner the decree. further more, the limitation act itself prescribes periods of limitation for bringing suits and periods of limitation for the execution of decrees, and it seems pretty clear that the word 'prescribed' in this section refers to periods prescribed by the limitation act. section 48 of the code of civil procedure does not in a strict sense provide a 'period' of limitation. it is an enactment which forbids an order for execution upon a decree which is more than twelve years old. we must allow the appeal, set aside the order of.....
Judgment:

1. This appeal arises out of execution proceedings. The decree was dated as far back as the 28th of June 1904. In March 1915, an application was made for execution by attachment of certain property of the judgment-debtor. On that application (the 23rd of September 1915), two months' time was granted to the judgment-debtor to pay the balance of the decretal amount, he having paid Rs. 22 on account. No further step appears to have been taken on this application and it was struck off. On the 6th of September 1916, the present application was made. It sought execution in a different way. The application of the 31st of March 1915 was for execution by attachment of property. In the application of the 6th of September 1916, execution was sought by the arrest of the judgment-debtor. The judgment debtor raised an objection that having regard to the provisions of Section 48 of the Code of Civil Procedure the decree being now more than twelve years' old, an order for execution could not be made. The First Court allowed the objection. The learned District Judge upon appeal held, first, that the application was within time holding, that the twelve years mentioned in Section 48 ran from 1915 and secondly, that the application was within time under Article 179, Clause 4, of the Limitation Act. The judgment-debtor has appealed. The learned Vakil, for the decree-holder, admits that Article 179, Clause 4, of the Limitation Act does not apply, but he contends that the order of the 23rd of September 1915, when the judgment-debtor was allowed two months to pay the decree, was a 'subsequent order', within the meaning of that expression in Section 48, Clause (b), of the Code of Civil Procedure, and secondly, that in calculating the period of twelve years mentioned in Section 48 of the Code of Civil Procedure the two months, which were given to the judgment-debtor by the order of the 23rd of September 1915, should be excluded having regard to the provisions of Section 15 of the Limitation Act. Amongst the authorities cited by each side were Ram Nath Tewari v. Chatterpalman Tewari 30 Ind. Cas. 521 : 37 A. 638 : 13 A.L.J. 826; Jogobundhoo Dass v. Hori Rawoot 16 C. 16 : 8 Ind. Dec. (N.S.) 11, Balchand v. Raghunath Das 4 A. 155 : A.W.N. (1881) 168 : 2 Ind. Dec (N.S.) 766; Rghunath Prosad v. Kashi Prosad 13 Ind. Cas. 88 : 15 C.L.J. 678; Tata Charlu v. Konadala Ramachandara 7 M. 152 : 2 Ind. Dec. (N.S.) 691 and Perumal Naickar v. Davood Rowther 34 Ind. Cas. 393.

2. Section 48 of the Civil Procedure Code is as follows:

Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

3. As already mentioned, it is contended that the order of the 23rd - of September ' 1915, giving the judgment-debtor two months' time, is a subsequent order directing the payment of the balance of the money. It must be remembered that this order was made by the Court executing the decree. It may perhaps have so happened in this case that it was the same Court which granted the decree of the 28th of June 1904, that was executing the decree. But if the argument put forward by the decree-holder is good, it would equally apply to a case where the decree had been merely transferred to another Court for execution. It would almost seem to follow that even an adjournment of an application for execution would give a fresh period of twelve years from the expiry of the period of adjournment. After consideration we have come to the conclusion that a subsequent order directing payment of money in Section 48, Clause (b), means a subsequent order made by the Court which made the decree and acting as that Court, and not an order of a Court executing a decree. In all probability the section contemplates orders made under Order XX, Rule 11. We may say in passing that the order of the 23rd of September 1915 was not made under Order XX, Rule 11. As to the argument put forward grounded on the provisions of Section 15 of the Limitation Act, this section runs as follows: In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.'

4. In the first place, the order of the 23rd of September was not strictly an order staying the executioner the decree. Further more, the Limitation Act itself prescribes periods of limitation for bringing suits and periods of limitation for the execution of decrees, and it seems pretty clear that the word 'prescribed' in this section refers to periods prescribed by the Limitation Act. Section 48 of the Code of Civil Procedure does not in a strict sense provide a 'period' of limitation. It is an enactment which forbids an order for execution upon a decree which is more than twelve years old. We must allow the appeal, set aside the order of the Court below and restore the order of the Court of first instance with costs in all Courts.


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