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Mahesh Prasad Vs. Shyam Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1935All909; 157Ind.Cas.273
AppellantMahesh Prasad
RespondentShyam Lal and anr.
Cases Referred and Prem Narain v. Ganga Ram
Excerpt:
- - in other words, the application of which it was held to be a revival bad not been finally disposed of by the previous order passed by the court. i am clearly of opinion that in this case the order was a final order. it follows therefore that limitation under article 182 of the act must run from the date of that order and the decision of the executing court is perfectly correct......j.1. the circumstances out of which the application has arisen are as follows : the applicant is a decree-holder who had obtained a decree for money on 31st january 1928. he made an application for execution on 20th august 1928, and this application was dismissed in part payment on 5th september 1928. he made a second application on 25th february 1930, and on 9th july 1930, he made an application to the court to the effect that he had received rs. 100 from the judgment-debtor and the case might be dismissed in part payment as two months time had been given to the judgment-debtor to pay the balance; and the court in consequence recorded an order in the following words:pus hukum hua keh mokadma haza juzwi wasul me khariz ma jawi aur kharcha zima madiun rahe.it is therefore ordered that.....
Judgment:

Kendall, J.

1. The circumstances out of which the application has arisen are as follows : The applicant is a decree-holder who had obtained a decree for money on 31st January 1928. He made an application for execution on 20th August 1928, and this application was dismissed in part payment on 5th September 1928. He made a second application on 25th February 1930, and on 9th July 1930, he made an application to the Court to the effect that he had received Rs. 100 from the judgment-debtor and the case might be dismissed in part payment as two months time had been given to the judgment-debtor to pay the balance; and the Court in consequence recorded an order in the following words:

Pus hukum hua keh mokadma haza juzwi wasul me khariz Ma jawi aur kharcha zima madiun rahe.

It is therefore ordered that this case be dismissed in part payment and the costs be borne by the judgment-debtor.

2. The decree-holder has now made a third application on 8th September 1933 which the Executing Court has dismissed on the ground that it was made more than three years after the last order passed by the Court. It is argued on behalf of the decree-holder-applicant that the period of 2 months' grace allowed by the decree-holder to the judgment-debtor ought to be taken into consideration, and that limitation should therefore not be deemed to run from 9th July 1930, when the order was passed by the Court dismissing the application, because it is said that that was only a provisional order and there was still two months' grace at the end of which the application must be deemed to have been dismissed, so that limitation should only be deemed to run from 9th September 1930, the end of that period of grace. There can be no doubt that the law applying to such a case as that contained in Article 182, Limitation Act. The time from which the period begins to run, therefore is:

the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order,

as set forth in Clause 5, Col. 3 of that Article. The Executing Court has relied on the decision of a Full Bench of this Court in Gobardhan Das v. Dau Dayal 1932 All 273. The law of Limitation that the Full Bench were considering in that case was Section 48 Civil P.C., and not Article 182, Limitation Act, but the principle laid down is that which has been enunciated by their Lordships of the Privy Council, namely, that:

A man may bind himself not to execute a decree within a certain period, but he cannot by binding himself not to execute the decree for a certain period add to the time which the law allows him to execute it.

3. I have been referred on behalf of the applicant to two cases of this Court, in which a somewhat different view is said to have been taken, namely, Chhattar Singh v. Kamal Singh 1927 All 16 and Prem Narain v. Ganga Ram 1931 All 458, In the earlier case, which was a Full Bench case, it has been held that where the execution of a decree has been suspended through no act or default of the decree-holder, he has a right to ask the Court to revive and carry through the execution proceedings which have been suspended and this right can be exercised by means of a proper application to that effect, made within three years of the date on which the right to make it accrued, as such application would be one for which no period of limitation has been expressly provided and would, therefore fall under Article 181 of the Schedule to the Limitation Act (i.e., not Article 182). The Bench in that case came to the conclusion that the application with which they were concerned was not a fresh application but an application for revival of the proceedings in execution. In other words, the application of which it was held to be a revival bad not been finally disposed of by the previous order passed by the Court. In the second case it was found that the Executing Court had passed an interim order staying execution, and that the parties afterwards agreed that three months' time should be allowed to the judgment-debtors to pay the amount, failing which, execution should proceed and subsequently the Court ordered:

The execution be struck oft for the present, sc that it was open to the decree-holder to apply to the Court to revive and carry through the pending execution...and it was not incumbent upon him to file a fresh application to initiate a new execution.

4. The crux of the matter therefore is whether the order of the Court passed on 9th July 1930, was only a provisional order suspending the application for execution as in the two cases on which the opposite party relied, or whether it was a 'final order passed on an application made' as referred to in Clause 5, Article 182, Limitation Act. I am clearly of opinion that in this case the order was a final order. It is certainly remarked that the decree-holder had given the judgment-debtor two months time in which to pay the balance of the decretal amount, but the order of the Court is not that the proceedings are suspended but that the application is dismissed, and moreover, costs are given against the judgment-debtor. Further the decree-holder himself did make a fresh application on 8th September 1933, which appears to be an application for a new proceeding and not merely one reviving a proceeding which has only been suspended. It follows therefore that limitation under Article 182 of the Act must run from the date of that order and the decision of the Executing Court is perfectly correct. The application is therefore dismissed with costs.


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