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Murlidhar Vaish Vs. Khaj Baksh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Appeal No. 10 of 1958
Judge
Reported inAIR1960MP215
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48; Limitation Act, 1908 - Schedule - Article 182 and 182(5)
AppellantMurlidhar Vaish
RespondentKhaj Baksh
Appellant AdvocateR.B. Atal, Adv.
Respondent AdvocateG.P. Patankar, Adv.
DispositionAppeal partly allowed
Cases ReferredAyi Goundan v. Solai Goundan
Excerpt:
.....was clearly beyond 12 years from the date of the decree and since it contained a new prayer, it was a fresh application. 5. the next question is whether the entire execution must fail as barred by article 182 of the limitation act ? my answer is in the negative......be arrested & detained in civil prison. it was no. 14 of 1950. in that case, on 8-3-1952, the decree-holder made an application to the lashkar court that the decree be transferred to morena. this was allowed and in consequence the case was consigned to the record. however, as the compliance of that order was not made, the decree-holder on 15-12-1954 made another application inviting the attention of the court to that fact. on 4-3-1953 the decree was transferred to morena. 3. on 31-7-1957 the decree-holder made an application to the morena court praying for attachment of certain properties of the judgment-debtor. this application was assailed as barred by time, as also barred under section 48 of the code or civil procedure. the executing court overruled the objections. on appeal, the.....
Judgment:

Shiv Dayal, J.

1. This appeal arises out of an execution matter and the question is whether the proceedings were barred by Section 48 of the Code of Civil Procedure and Article 182 of the Limitation Act.

2. The decree was passed on 24-12-1942 Certain applications for execution were made in succession, but in this appeal I am not concerned with those. On 28-4-1950 the appellant made an application for execution in the Court of the City Civil Judge, Lashkar, with the prayer that the judgment debtor be arrested & detained in Civil prison. It was No. 14 of 1950. In that case, on 8-3-1952, the decree-holder made an application to the Lashkar Court that the decree be transferred to Morena. This was allowed and in consequence the case was consigned to the record. However, as the compliance of that order was not made, the decree-holder on 15-12-1954 made another application inviting the attention of the Court to that fact. On 4-3-1953 the decree was transferred to Morena.

3. On 31-7-1957 the decree-holder made an application to the Morena Court praying for attachment of certain properties of the judgment-debtor. This application was assailed as barred by time, as also barred under Section 48 of the Code or Civil Procedure. The executing Court overruled the objections. On appeal, the learned Additional District Judge held that the application of 31-7-1957 was barred by Section 48 and dismissed the execution proceedings.

4. In this appeal Shri Atal urges that the time which was spent in transferring the decree must be excluded. In my opinion, this contention is not correct. For the purposes of Section 48 of the Code, the application of 31-7-1957 was clearly beyond 12 years from the date of the decree and since it contained a new prayer, it was a fresh application. This is settled law. See Deorao v. Ramchandra, AIR 1948 Nag 272 and Shrikisandas v. Sitaram, AIR 1952 Nag 126 (FB). This appeal must, therefore, be dismissed so far as the question under Section 48 of the Code is concerned.

5. The next question is whether the entire execution must fail as barred by Article 182 of the Limitation Act My answer is in the negative. The decree-holder's application of 15-12-1954 saves the application of 31-7-1957 being within three years of that date. I cannot accept the argument of Shri Patankar that since 15-12-1954, there was no execution application pending, the application made on that day for a transfer of the decree to another Court could not be a step in aid. I do not see anything in the language of Article 182 (5), which contemplates the pendency of an execution application at the time when an application to take a 'step-in-aid' of execution is made.

The application for transfer is the first aid which the decree-holder seeks at the hands of the Court which passed the decree before it can be executed in another Court. An application made to an executing Court for the transfer of a decree, is undoubtedly a step in aid of execution withinthe meaning of Clause 5 of Article 182 and that is so even when an execution application is not pending. An application to take a step in execution is entirely separate from an application for execution.

It is not necessary for the purpose of saving limitation under the article that an application taken as a step in aid of execution should be made in a pending execution petition. In this view, I am fully supported by the decisions in Sheolal Ramlal v. Ramrao Balasaheb, AIR 1948 Nag 197, Prayagdas v. Indirabai, ILR (1943) Nag 734 : (AIR 1944 Nag 80) and several decisions of other High Courts, e.g. Chathangali Carichan v. Kunhamu ILR 57 Mad 808 : (AIR 1934 Mad 392), ILR 55 All 890 : (AIR 1934 All 463), Ram Kali v. Bir Bhadarman and a Full Bench decision of the Madras High Court in Ayi Goundan v. Solai Goundan ILR (1945) Mad 468 : (AIR 1945 Mad 139) by which its earlier decisions to the contrary must be held as overruled.

6. This appeal must, therefore, be dismissed so far as the question under Section 48 of the Code of Civil Procedure is concerned. I hold that the new relief claimed in application dated 31-7-1957 could not be granted and has been rightly rejected by the lower appellate Court. But the execution proceeding as a whole could not be dismissed. The application of July 31, 1957 was within time under Article 182 of the Limitation Act and has kept the decree alive. It is open to the decree-holder to snake any other application which may be permissible under the law.

7. The result is that the appeal is partly allowed. The refection of the fresh prayer contained in the application of 31-7-1957 is maintained, but the matter shall now go back to the executing Court and it will be open to the decree-bolder to make such application as may be permissible under the law. In the circumstances of the case, costs of this appeal shall be borne by the parties themselves.


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