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Harbachan Singh Harbaksh Singh and anr. Vs. L. Sita Ram L. Kanshi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 248 of 1957
Judge
Reported inAIR1960P& H362
ActsIndian Limitation Act - Articles 181 and 182; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 11(12)
AppellantHarbachan Singh Harbaksh Singh and anr.
RespondentL. Sita Ram L. Kanshi Ram and ors.
Cases ReferredYeshwant Deorao v. Walchand Ramchand
Excerpt:
.....executing court this objection was repealed by the learned sub-judge by relying on a copy of the order dated 15th of march, 1952, which showed that a previous application for execution was dismissed, on that day and therefore under article 182 of the indian limitation act, the present execution petition was well within limitation. this is not a matter which is so valid to the competence of the petition that failure to mention the dates of the previous execution applications would make the present execution application incompetent......qua the judgment-debtors (3) whether the execution application is within in time (4) whether the present decree-holders could not file this execution application without obtaining a succession certificate (5) whether the transfer of the decree in favour of the present decree-holders is invalid (6) relief. (2) the executing court disallowed the objections of the judgment-debtors and on appeal the order of the executing court was confirmed.(3) on second appeal the only question agitated by the counsel for the appellants relates to the question of limitation covered by issue no. 3. the counsel has contended that the decree was passe din 1940 and the present execution application had been filed on 29th of november 1952, which prima facie is barred by time. in the executing court this.....
Judgment:

1. Dr. Shiv Nand obtained a money decree against Harbachan Singh and Jagdev Singh on 30-11-1940. The decree-holder later died, leaving two sons, Pt. Hari Gopal and Pt. Siri Gopal. Hari Gopal made a gift of his half share in the decree in favour of Lajpat Rai High School, Sangrur, by means of a gift deed dated 7-5-1951. The Managing Committee of the aforesaid school and Siri Gopal sued out execution of the decree against the judgment-debtors. Earlier they had realised Rs. 300/- from the judgment-debtors. In execution proceedings they got attached some agricultural land belonging to the judgment-debtors on 27-11-1953. The judgment-debtors objected to the execution, pleading that the attached land was ancestral and therefore, could not be sold in execution of the decree.

2. They also alleged that the decree was passed against them in their capacity as legal representatives of their father, Harbaksh Singh, who had incurred the debt and that the execution application was barred by time. They also attacked the transfer of the decree in favour of Lajpat Rai High School, Sangrur, as being invalid and further challenged the right of the decree-holders to sure out execution without obtaining a succession certificate. On the pleadings, the following issues were framed:

(1) Whether the decree, which is sought to be executed, was passed against the judgment-debtors as legal representatives of Harbaksh Singh

(2) Whether the attached land is ancestral qua the judgment-debtors

(3) Whether the execution application is within in time

(4) Whether the present decree-holders could not file this execution application without obtaining a succession certificate

(5) Whether the transfer of the decree in favour of the present decree-holders is invalid

(6) Relief.

(2) The executing Court disallowed the objections of the judgment-debtors and on appeal the order of the executing Court was confirmed.

(3) On second appeal the only question agitated by the counsel for the appellants relates to the question of limitation covered by issue No. 3. The counsel has contended that the decree was passe din 1940 and the present execution application had been filed on 29th of November 1952, which prima facie is barred by time. In the executing Court this objection was repealed by the learned Sub-Judge by relying on a copy of the order dated 15th of March, 1952, which showed that a previous application for execution was dismissed, on that day and therefore under Article 182 of the Indian Limitation Act, the present execution petition was well within limitation.

Before the lower appellate Court, as observed in its order dated 12th of December,, 1956, only a faint attempt was made by the counsel for the appellants to attack the findings of the Court of first instance. But in that Court also relying on the order dated 15th of March, 1952, it was held that the present application for execution was within limitation. Before the Court of first appeal an attempt was made to urge that the previous application, which was disposed of by the order dated 15th of March, 1952, had not been filed within limitation.

This point was not permitted to be raised by the Court for the first time in appeal because such an objection had not been raised in the executing Court. The learned District Judge has observed in his judgment that since no objections had been raised that the previous application had been filed beyond limitation, it was not incumbent on the decree-holders to produce any material for the purpose of showing that the previous application was within limitation.

(4) Mr. Sharma, on behalf of the judgment-debtors, basing himself on Yeshwant Deorao v. Walchand Ramchand, AIR 1951 SC 16, has contended that it was obligatory and the decree-holders to prove that the decree has been kept alive till the present execution application was instituted. He has relied upon the following passage occurring in the above judgment:

'Without section 48, Civil Procedure Code, a decree-holder, if he made application as required by Article 181 or 182, Limitation Act, could keep his decree alive for an indefinite period. The Legislature, as a matter of policy, ruled that a decree of a Civil Court (but excluding the High Court) shall not be kept alive for more than 12 years, although all necessary steps are taken under the Limitation Act to keep the decree alive and operative. That is one limit to the right of the decree-holder to enforce the decree of the Court. The second limitation to his right, which is independent of the first, is that he must keep the decree alive under Article 182 or 181, as the case may be'.

(5) The counsel submits that according to this last sentence in the above quoted passage, the decree-holder must keep the decree alive under Article 182 or 181, as the case may be. The proposition of law enunciated is unexceptionable but the question before me is as to whether and it is not obligatory on the decree-holder, without any objection being raised to establish that all previous applications had been field within limitation and this question is not covered by the observations of the Supreme Court.

(6) Under Article 182 the terminus a quo applicable to the instant case is the date of the final order passed on an application made in accordance with law to the proper Court for execution. The final order as required by this Article in the instant official is the order dated 15th of March, 1952. As all official acts are presumed to the properly done, if the pervious application was not according to law, then it should have been so pleaded by the judgment-debtors. The objections raised by the judgment-debtors appellants were numerous and most of them frivolous and contrary to the record. So far as the plea of limitation is concerned, all that was pleaded was that the decree was barred by time and therefore inexecutable. Such a plea can hardly be construed to amount to an attach on the previous applications being barred by time.

(7) The counsel has also referred me to the present execution application and has contended that this application does not comply with the provisions of Order 21, rule 11(12) Civil Procedure Code, inasmuch as it does not contain the dates of the previous applications if any, made for the execution of the decree. It is argued that the provisions of Order 21, rule 1(2), Civil Procedure Code, are mandatory and non-compliance with any part of those provisions invalidates the petition. In my opinion, its contention is wholly devoid of merit. In the first instance, such an objection should have been raised in the executing Court.

This is not a matter which is so valid to the competence of the petition that failure to mention the dates of the previous execution applications would make the present execution application incompetent. These are mere irregularities which can be remedied at any time if an objection is raised at the proper stage. The present application did actually give the date of the final order on a previous application for execution and if the judgment-debtors wanted to assail the effectiveness of that order, it was open to him to raise an objection to that effect, and to inspect the previous proceedings and, if necessary to summon the records of those proceedings and show to the Court that the previous application was also barred by time and therefore the order dated 15th of March, 1952, could not save limitation of the present execution application.

(8) During arguments it was also stated on behalf of the appellants that the judgment-debtors knew nothing about the decree which had been passed ex parte and it was for the first time that they learnt of it when notice for the present execution proceedings was served on them. This suggestion appears to be wholly contrary to the true facts. The counsel for the respondents has read out the statement made by the judgment-debtors themselves in Court where it is admitted that the judgment-debtors had raised the objection that they were not personally liable, but the trial Court repelling these objections passed a decree holding them personally liable. I have also been referred to a statement by the decree-holders where it is stated that a sum of Rs. 300/- had actually been paid by the judgment-debtors towards the decree.

(9) For the reasons given above, this appeal fails and is hereby dismissed. In the circumstances of the case, however, there will be no order as to costs in the Court.

(10) Appeal dismissed.


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