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Rupai Rai and ors. Vs. Murat Tewari - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in131Ind.Cas.678
AppellantRupai Rai and ors.
RespondentMurat Tewari
Cases ReferredKaystha Co. Ltd. v. Sita Ram Dubey
Excerpt:
limitation act (ix of 1908), schedule i, article 182(5) - execution of decree--limitation--application filed merely to keep decree alive, whether saves limitation. - - civil procedure code, it is a good and valid application and is operative for the purpose of saving limitation, it being immaterial whether the decree-holder was anxious to have immediate execution or merely wanted to maka this application with a view to keep his decree alive.1. this is an appeal by the decree-holder arising out of an application for execution of a decree, dated 15th may, 1924.2. on the 18th of march, 1921, a decree was passed in favour of rupai rai and others from the court of the subordinate judge of gorakhpur in suit no. 126 of 1920. this decree was upset on appeal by the lower appellate court on the 7th of april, 1922. there was an appeal to this court which reversed the lower appellate court and restored the decree of the trial court on the 15th may, 1924. the present application is for the execution of the decree, dated 15th may, 1924, affirming the original decree. the first application for execution was made on the 30th april,1927, but was struck off for default of prosecution on the 6th june, 1927. the second application which has.....
Judgment:

1. This is an appeal by the decree-holder arising out of an application for execution of a decree, dated 15th May, 1924.

2. On the 18th of March, 1921, a decree was passed in favour of Rupai Rai and others from the Court of the Subordinate Judge of Gorakhpur in Suit No. 126 of 1920. This decree was upset on appeal by the lower Appellate Court on the 7th of April, 1922. There was an appeal to this Court which reversed the lower Appellate Court and restored the decree of the trial Court on the 15th May, 1924. The present application is for the execution of the decree, dated 15th May, 1924, affirming the original decree. The first application for execution was made on the 30th April,1927, but was struck off for default of prosecution on the 6th June, 1927. The second application which has given rise to the present appeal was made on the 5th of December, 1927. It was contended by the judgment-debtors that the application, dated the 30th April, 1927, was not a bona fide application and, therefore, could not be treated as an application in accordance with law or as a step-in-aid of execution under Article 182 of the Limitation Act. This plea was repelled by the Court of first instance but was accepted by the lower Appellate Court on the authority of Sheo Prasad v. Naraini Bai : AIR1926All95 . The decree-holder was appealed to this Court. We are of opinion that the appeal ought to be allowed. The matter is concluded by a decision of this Court in Kaystha Co. Ltd. v. Sita Ram Dubey : AIR1929All625 in which it was held that a decree holder or a person applying for execution of a decree is not called upon to satisfy the Court that a previous application for execution or for some step in-aid of execution from which he seeks to reckon the period of limitation for his next application had been made with a genuine intention of obtaining execution of his decree if reasonably possible and that he did not abandon the proceedings except upon a genuina belief that it would not be reasonably possible to obtain execution. 1 : is not opsn to the execution Court to go into the question of the bona fides of the application for execution. If the application purports to be one for execution and fulfils the reqirements of Order XXI, Rule III. Civil Procedure Code, it is a good and valid application and is operative for the purpose of saving limitation, it being immaterial whether the decree-holder was anxious to have immediate execution or merely wanted to maka this application with a view to keep his decree alive. We allow this appeal sat aside the order of the lower Appellate Court and restore that of the Court of first instance. The parties should bear their own costs in the Courts below. The appallant is entitled to have his costs of this appeal which will include Counsel's fees on the higher scale.


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