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Bahadursingh and anr. Vs. Diwan Moujilal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (Second) Appeal No. 105 of 1958
Judge
Reported inAIR1960MP43
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(5); Code of Civil Procedure (CPC) - Order 21, Rule 2
AppellantBahadursingh and anr.
RespondentDiwan Moujilal and ors.
Appellant AdvocateA.P. Sen, Adv.
Respondent AdvocateR.K. Pandey, Adv.
DispositionAppeal dismissed
Cases ReferredHatimulla v. Sukhamoy Chaudhari
Excerpt:
- ordert.c. shrivastava, j.1. this second appeal has been filed by the judgment-debtors against the decree-holders challenging the order passed by the additional district judge, hoshangabad, on 26-7-1958, reversing the order of the 2nd civil judge, hoshangabad, dated 6-1-1958, in an execution case.2. in this case, the decree-holders obtained a decree against the judgment-debtors 011 15-4-1943. the last execution petition was dismissed on 8-8-1953. while this application was pending the judgment-debtors filed an application under order 21, rule 2, civil procedure code, for recording an adjustment on 9-7-1953. this petition was opposed by the decree-holders and was ultimately disallowed on 6-4-1955. the judgment-debtors went up in appeal' which was also dismissed. the decree-holders.....
Judgment:
ORDER

T.C. Shrivastava, J.

1. This second appeal has been filed by the judgment-debtors against the decree-holders challenging the order passed by the Additional District Judge, Hoshangabad, on 26-7-1958, reversing the order of the 2nd Civil Judge, Hoshangabad, dated 6-1-1958, in an execution case.

2. In this case, the decree-holders obtained a decree against the judgment-debtors 011 15-4-1943. The last execution petition was dismissed on 8-8-1953. While this application was pending the judgment-debtors filed an application under Order 21, Rule 2, Civil Procedure Code, for recording an adjustment on 9-7-1953. This petition was opposed by the decree-holders and was ultimately disallowed on 6-4-1955. The judgment-debtors went up in appeal' which was also dismissed. The decree-holders subsequently filed the present execution on 5-4-1957. It is common ground between the parties that unless the decree-holders are allowed the time during which the judgment-debtors' application for recording the adjustment was pending, the petition for execution would be barred by time. The trial Court held that the decree-holders could not get advantage of these proceedings and dismissed the execution as barred by time; but the lower appellate Court held otherwise, holding that the decree-holders were entitled to treat their objection to the petition of the judgment-debtors as a step-in-aid within the meaning of Article 182, clause (5) of the Limitation Act.

3. The only question which thus arises for determination in this appeal is whether the opposition of the proceedings by the decree-holders amounted to a step-in-aid. Shri A. P. Sen for the appellants-judgment-debtors contends that the proceedings could not amount to a step-in-aid, as they were not initiated by the decree-holders and did not, in any way, advance the execution proceedings. He relies upon the decision in Krishna Pattar v. Seetharama Pattar, ILR 50 Mad 49: (AIR 1926 Mad 1178). In that case it has been held that the filing of a statement by a decree-holder, objecting to the judgment-debtor's application to record satisfaction of the decree, is not a step-in-aid of execution of the decree under Article 182(5) of the Limitation Act.

4. The point as to what is a step-in-aid came iu for consideration in Jagdeo Narain v. Bhubaneswari Kuer, AIR 1928 Pat 612. Pointing out that Article 182(5) of the Limitation Act does not require that an application to take some step-in-aid should be made in the course of execution proceedings, it was observed that all that the clause requires is that an application should be made to take some step-in-aid of the execution of the decree. It was further observed that any step taken by the decree-holder to remove an obstacle thrown by the judgment-debtor in the way of the execution of the decree is a step-in-aid of execution.

In that case, an application was filed by the judgment-debtor to set aside a sale under Order 21, Rule 90, and this was opposed by the decree-holder. It was held that the opposition by the decree-holder was a step-in-aid of the execution. In another case, Chennammal v. Chennappa, AIR 1958 Mad 21, it has been held that the time during which a civil suit and an appeal filed by an obstructer under Order 21, Rule 103, were pending should be treated as a continuation of the execution proceedings.

5. The question arose directly in the context of an application filed by the judgment-debtor for recording an adjustment under Order 21, Rule 2, in Hatimulla v. Sukhamoy Chaudhari, AIR 1930 Cal 304 and it has been held in that case that the act of the decree-holder contesting the petition should be taken to be an application to the Court to take a step-in-aid of the execution.

6. In the instant case, the judgment-debtors had applied for recording an adjustment while the execution proceedings were pending. During the period when this application was being inquired into, the original execution petition was dismissed, The adjustment pleaded by the judgment-debtors was a bar to the execution and the decree-holders could not file a fresh application until that bar was removed. Under these circumstances, the contest raised by them to the recording of the adjustment was a step-in-aid of the execution of the decree and the lower appellate Court has rightly held that the decree-holders were entitled to the benefit of Article 182(5) of the Limitation Act.

7. In the result the appeal fails and is dismissed with costs.


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