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Umrao Khan Akbar Khan Vs. Waheed Khan Abdul Majeed - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Appeal No. 17 of 1958
Judge
Reported inAIR1960MP388
ActsLimitation Act, 1908 - Schedule - Articles 181 and 182(5)
AppellantUmrao Khan Akbar Khan
RespondentWaheed Khan Abdul Majeed
Advocates:P.D. Gupta, Adv.
DispositionAppeal allowed
Cases ReferredNagendra Nath v. Suresh Chandra Dey
Excerpt:
.....period undergone by appellant considering mental agony suffered by him - the appellantshall get his costs in this court as well as in thecourt of first appeal......to the high court by the judgment-debtor could give a fresh start of limitation. on behalf of the decreeholder aid was sought from the decision of the privy council in nagendra nath v. suresh chandra dey, ilr 60 cal 1: (air 1932 pc 165). but in my view, in both the courts below the position of law was misconceived. article 182(2) is entirely irrelevant here. what i find is that on july 20. 1950 the earlier application for execution (no. 18 of 1949) was dismissed for default.now that execution had been stayed by the order of the district judge dated february 8, 1950 and the appeal was decided on september 29, 1950. it may have been for administrative reasons that the execution was dismissed for default; in the eye of law since the proceedings had been suspended, the execution must be.....
Judgment:

Shiv Dayal, J.

1. This second appeal arises out of an execution matter. The lower appellate court has dismissed the application for execution us barred by time.

2. The short facts are that in execution ot his decree the appellant at first got some move-ables of the judgment debtor attached and then applied for attachment and sale of his house, to which the respondent objected. But the objection was overruled (execution No. 18 of 1949). The judgment debtor took an appeal against it. In. the meanwhile the house was sold. The highest bid was of the decree holder. Oh January 10, 1950, the Nazir knocked down the sale in anticipationof its acceptance by the court. However, on February 8, 1950 the appellate court stayed further proceedings of sale. Eventually the appeal was dismissed on September 29, 1950. An appeal was then preferred by the judgment-debtor to the High Court of Madhya Bharat but it was dismissed on December 4, 1953.

3. The present application for execution was made on September 8, 1955. The question is whether this second application for execution is within time. The first appellate court has held against the decree-holder on the ground that the stay order which was passed by the District Judge stood automatically vacated on September 29, 1950 when the appeal was dismissed and since there was no stay order passed by the High Court of Madhya Bharat, the limitation could not be computed from December 4, 1953 and the second application lor execution having been presented after three years from September 29, 1950 it was barred by time.

4. On going through the record I find that both sides contested the case on the application of Clause (2) of Article 182 of the Limitation Act. Controversy raged on the question whether the decision on the appeal which was filed to the High Court by the judgment-debtor could give a fresh start of limitation. On behalf of the decreeholder aid was sought from the decision of the Privy council in Nagendra Nath v. Suresh Chandra Dey, ILR 60 Cal 1: (AIR 1932 PC 165). But in my view, in both the courts below the position of law was misconceived. Article 182(2) is entirely irrelevant here. What I find is that on July 20. 1950 the earlier application for execution (No. 18 of 1949) was dismissed for default.

Now that execution had been stayed by the order of the District Judge dated February 8, 1950 and the appeal was decided on September 29, 1950. It may have been for administrative reasons that the execution was dismissed for default; in the eye of law since the proceedings had been suspended, the execution must be deemed to be pending. In that view of the matter what is to be seen is whether the application which the decree-holder made on September 8, 1955 could be treated as an application for reviving the dismissed application No. 18 of 1949. It seems clear to me that where an execution is suspended for no default of the decree-holder, in reality it remains pending and can be revived on an application by the decree-holder without being hindered by any rule of limitation.

It is not barred either under Article 182(5) nor Article 181. But the court has to see cautiously whether the same relief is claimed and it is the continuity of the suspended execution from the stage of its suspension which is prayed or that a new relief or new mode of execution is sought. In the latter case, it will be a fresh application, oven though it be styled as an application for revival. On the contrary if the application is merely to call the attention of the eourt that it has to continue the proceedings which had been suspended, it is immaterial that it is drawn on a printed form as if it were a fresh application for execution.

It is the substance of the application on which depends the legal effect. Here, the decree-holder has merely pressed For confirmation of the sale which had taken place in execution No. 18 of 1949 and tor proceeding further with the execution. In reality, therefore, this application of September Section 1955, is an application reminding the court to proceed with the previous execution application which had been obstructed on the judgment-debtor's appeal. Such an application can be made without any bar of time.

5. This appeal is allowed, the judgment andorder passed by the first appellate court are setaside. The case shall now go back to the executing court for proceeding further with executionNo. 18 of 1949, according to law. The appellantshall get his costs in this court as well as in thecourt of first appeal.


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