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Mahammad Hadi Vs. Debi Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All600; 77Ind.Cas.871
AppellantMahammad Hadi
RespondentDebi Prasad and ors.
Excerpt:
limitation act (ix of 1908), section 15, schedule i, article 182 - execution of decree--stay of execution--proceeding struck off--right to revive proceeding - .....of the property attached did not tally with the description given in certain revenue records. the decree-holder was called upon to explain he discrepancy but he did not turn up. misapplication was therefore, dismissed for default on the 25th of july 1913. on the 7th of august 1913 a fresh application was made for execution with a request that the previous execution proceedings should be sent for and the sale of the property attached proceeded with. on the 19th of september 1913 another application was filed by the decree-holder asking that, the order of the 25th of july 1913, should be formally set aside under order ix, rule 4 of the code of civil procedure and the previous execution proceedings restored to the file. an order followed restoring the case to the file and the execution was.....
Judgment:

1. There is no force in this appeal. On the 29th of January 1907 a decree was obtained under Section 90 of Act IV of 1882. The application for execution, with which we are at present concerned, was made on the 15th of April 1912, for the attachment and sale of certain property. An attachment followed but before the property could be sold the Court executing the decree found upon enquiry that the description of the property attached did not tally with the description given in certain Revenue Records. The decree-holder was called upon to explain he discrepancy but he did not turn up. misapplication was therefore, dismissed for default on the 25th of July 1913. On the 7th of August 1913 a fresh application was made for execution with a request that the previous execution proceedings should be sent for and the sale of the property attached proceeded with. On the 19th of September 1913 another application was filed by the decree-holder asking that, the order of the 25th of July 1913, should be formally set aside under Order IX, Rule 4 of the Code of Civil Procedure and the previous execution proceedings restored to the file. An order followed restoring the case to the file and the execution was proceeded with, with the result that some property was sold and a portion of the decretal money was realised. Meanwhile a suit was brought by a lady, named, Musammat Mohani Bibi, claiming title to certain other property which had been attached and proclaimed for sale. At the instance of the lady the execution of decree in question was stayed and the sale was postponed, pending the determination of her suit. On the 23rd of May 1914 the execution proceedings were struck off. In March 1919, the suit of the lady was dismissed and the embargo on the execution of the decree and the sale of the property, which formed the subject-matter of dispute in the suit, was removed. The present application for execution was filed soon afterwards on the on the 28th of January 1919, be within time.

2. It is argued on behalf of the judgment-debtors that the application of the 19th of September 1913 ought to be left out of account, beef me Order XI, Rule 4 of the Code of Civil Procedure was inapplicable to an execution proceeding. But the order which was passed on that application was an order binding on the parties, and it is now a longer open to the judgment-debtors against whom that order was passed presumably after notice, to question the validity of that order. In pursuance of that order the previous execution proceeding which fed been struck of for default was revived, and various steps were taken by the decree-holder to obtain satisfaction of his decree till a stay order was obtained by Musammat Mohani Bibi in the suit, to which a reference has already been made. From the date of the removal of the embargo by the said order the right of the decree-holder to continue the previous execution proceeding which was struck off, on the 23rd of May 1914, revived and on the analogy of the decision in Qamar-ud-din v. Jawahir Lal 27 A. 334 : 32 I.A. 102 : 2 A.L.J. 397 : 1 C.L.J. 381 : 9 C.W.N. 601 : 15 M.L.J. 258 : 7 Bom. L.R. 433 : 8 Sar. P.C.J. 8410 (P.C.) the present application for execution has been rightly held to be not barred by time. We dismiss the appeal accordingly with costs includingly fees in this Court on the higher scale.


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