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Bach Raj and anr. Vs. Bhanwar Lal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 13 of 1963
Judge
Reported inAIR1966Raj44
ActsLimitation Act, 1908 - Schedule - Article 182(5); Code of Civil Procedure (CPC) , 1908 - Sections 11 - Order 21, Rule 22
AppellantBach Raj and anr.
RespondentBhanwar Lal
Appellant Advocate Sumermal, Adv.
Respondent Advocate Gopaldas, Adv.
DispositionAppeal allowed
Cases ReferredSunder Singh v. Khilanda Ram
Excerpt:
- .....on 5th december, 1959. 5. the present application was filed on 10th march, 1961. the judgment-debtor filed an objection that it was barred by limitation as the first execution application dated 15th january, 1953 was not in accordance with law not having been verified in accordance with order 21, r. 11 civil procedure code. this objection was overruled by the appellate court. 6. i am of the opinion that the execution application dated 15th january, 1953 was in accordance with law for purposes of article 182(5) of the limitation act, as the only defect in it was that it was not verified but it was acted upon by the executing court. in this connection i may refer to the decision in sunder singh v. khilanda ram, air 1941 pesh 103 with which i respectfully agree. 7. further the order of.....
Judgment:

Jagat Narayan, J.

1. This is an execution appeal by the decree-holders against an appellate order of the Senior Civil Judge, Jodhpur holding that their execution application was barred by limitation. The Executing Court has held that it was within limitation.

2. The decree was passed on 24th March, 1952. Shri Ugamraj Bhansali was the lawyer who conducted the case in the trial court on behalf of the plaintiffs. On 15-1-1953 he presented an execution application which was signed by him. It was not signed and verified by any of the decree-holders. As was held in Hassan Saheb v. Ramchandra Appaya, AIR 1929 Bom 196 if Shri Ugamaraj had also verified the execution application it would undoubtedly have been in accordance with law. But the defect of want of verification was not noticed by the Executing Court and the application was acted upon. The property of the judgment-debtor was attached on this execution application. The judgment-debtor appeared and filed some objections. He too did not take the objection that the application was not verified. It was, however, dismissed for default on 10th September, 1955.

3. The second execution application was filed on 19th November, 1956. It was properly signed and verified. Notices under Order 21, Rule 22 Civil Procedure Code were issued to the judgment-debtor for 2nd February, 1957. On that date the Executing Court passed an order that the notices had been served and required the decree-holders to deposit the process fee. The process fee was deposited by the decree-holders, and on 13-4-1957 an order was passed for issuing a warrant of attachment under Order 21, Rule 30 Civil Procedure Code. On 23-4-1957 a warrant of attachment was actually issued.

4. The third application was filed on 14th August, 1959. It was in accordance with law. It was dismissed for default on 5th December, 1959.

5. The present application was filed on 10th March, 1961. The judgment-debtor filed an objection that it was barred by limitation as the first execution application dated 15th January, 1953 was not in accordance with law not having been verified in accordance with Order 21, R. 11 Civil Procedure Code. This objection was overruled by the appellate court.

6. I am of the opinion that the execution application dated 15th January, 1953 was in accordance with law for purposes of Article 182(5) of the Limitation Act, as the only defect in it was that it was not verified but it was acted upon by the Executing Court. In this connection I may refer to the decision in Sunder Singh v. Khilanda Ram, AIR 1941 Pesh 103 with which I respectfully agree.

7. Further the order of the Executing Court dated 13th April, 1957 on the second execution application dated 19th November, 1956 operates as res judicata. Notices under Order 21, Rule 22 Civil Procedure Code were served on the judgment-debtor. But he did not appear to file an objection that the application was barred by limitation. The judgment-debtor is thus precluded from raising an objection that the first execution application dated 15th January, 1953 was not in accordance with law.

8. I accordingly allow the appeal, set aside the order of the appellate court and remand the case to the executing court for proceeding with the execution in accordance withlaw.


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