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Union of India (Uoi) Through Advocate General, Delhi and anr. Vs. Moti Ram Behari Lal - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. First Appeal No. 2-D/ 1952
Judge
Reported inAIR1959P& H613
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48(1); Limitation Act, 1908 - Sections 15(1) and 29; Debt Laws; Uttar Pradesh Temporary Postponement of Execution of Decrees Act, 1937 - Sections 3
AppellantUnion of India (Uoi) Through Advocate General, Delhi and anr.
RespondentMoti Ram Behari Lal
Advocates: Bishambar Dayal, Adv.
DispositionAppeal dismissed
Cases ReferredKandaswami Pillai v. Kannappa Chetty
Excerpt:
.....for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires..........rs. 9,000/- and rs. 1,000/- odd as costs against moti ram respondent in a delhi court. the first execution application was dismissed on 4-1-1936. an application for transferring the decree for execution to agra was granted and the execution remained pending in the court at agra until january 1950. in the meantime another execution application was filed and dismissed at delhi in 1939 and in 1942 moti ram applied under sections 151 and 152 c. p. c. for amendment of the decree which was amended by an order dated 5-6-1942. by this amendment the costs in the said suit were reduced by about rs. 300/-. the present application was filed on 24-1-1951.3. in holding that the execution application was barred by time the lower court has relied on the provisions of section 48 c. p. c. which reads.....
Judgment:

D. Falshaw, J.

1. This is an appeal by the Union of India against the order of the lower Court dismissing an execution application as barred by time.

2. The facts are that on 12-8-1935 the Secretary of State for India in Council obtained a decree for Rs. 9,000/- and Rs. 1,000/- odd as costs against Moti Ram respondent in a Delhi court. The first execution application was dismissed on 4-1-1936. An application for transferring the decree for execution to Agra was granted and the execution remained pending in the court at Agra until January 1950. In the meantime another execution application was filed and dismissed at Delhi in 1939 and in 1942 Moti Ram applied under Sections 151 and 152 C. P. C. for amendment of the decree which was amended by an order dated 5-6-1942. By this amendment the costs in the said suit were reduced by about Rs. 300/-. The present application was filed on 24-1-1951.

3. In holding that the execution application was barred by time the lower court has relied on the provisions of Section 48 C. P. C. which reads :

'48. (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from -

(a) the date of the decree sought to be executed, or,

(b) where the decree or any subsequent orderdirects any payment of money or the delivery ofany property to be made at a certain date or atrecurring periods, the date of the default in makingthe payment or delivery in respect of which theapplicant seeks to execute the decree.'Apparently reliance was placed on the provisionsof Article 182 of the Limitation Act by which period of three years is fixed for the execution of adecree of a Civil Court other than the High Courtin the exercise of its ordinary original civil jurisdiction. Clause 4 of Article 182 fixes a period ofthree years from the date of the amendment wherea decree has been amended. The lower court tookthe view that provisions of Section 48 C. P. C., whichdid not contain any similar provision, were notaffected by anything in Article 182 of the Limitation Act.

4. On behalf of the Decree-holder however reliance is also placed on the provisions of Section 15 of the Limitation Act, Sub-section. (1) of which reads :

'15. (1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.'

It is pointed out in connection with the proceedings which were going on in the court at Agra that execution proceedings were stayed for a period ofnearly four years while the U. P. Temporary Postponement of Execution of Decrees Act of 1937 remained in force. This Act was repealed by the U.P. Debt Redemption Act, 1940 which came into force in January 1941. The words period of limitation prescribed in Section 15(1) of the Limitation Act have been considered by a Full Bench of the Madras High Court in Kandaswami Pillai v. Kannappa Chetty, AIR 1952 Mad. 186 and it was held that the period prescribed was not confined to period prescribed in the Limitation Act itself and that it also includes the period prescribed in Section 48 C. P. C.

The question considered in the Full Bench namely 'Is Section 48 C.P.C. controlled by Section 15 of the Indian Limitation Act, or does it prescribe an absolute prohibition of an entertainment of a fresh execution application beyond twelve years from the date of the decree subject only to the exceptions contained in the same section?' was thus answered :

'Section 48 C. P. C. is controlled by Section 15(1) of the Indian Limitation Act,'

5. If the period during which the execution proceedings were stayed in the Court at Agra is excluded it would seem that an execution application filed in January 1951 was still within 12 years of the date of the original decree, which was passed in August 1935.

6. On the other hand this point was raised before the lower Court and it seems to me that it was rightly pointed out that there was no absolute stay of execution of the decree, all that was stayed by the U. P. Temporary Postponement of Execution of Decrees Act 1937 being the efforts of the Decree-holder in this case to realise the decretal amount by the sale of some land owned by the judgment-debtor in the district of Agra, and there was nothing whatever to stop the Decree-holder from taking proceedings at Delhi against any assets of the Judgment-debtor which could be found there, and in fact it is quite clear that during the pendency of the proceedings at Agra and while the Act which stayed those proceedings was in force, an execution application was filed at Delhi, on the 16th of August 1939 and dismissed on 18-11-1939. I am therefore of the opinion that a correct view was taken by the lower court. I accordingly dismiss the appeal but make no orders as to costs since no appearance was made on behalf of the respondent.


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