1. This is an appeal from an order made in the course of proceedings for the execution of a decree passed as far back as the 20th of December 1893. The record disclosed a long series of unsuccessful attempts on the part of the decree-holder to realize the decretal debt; and the substantial question is whether his rights under the decree are barred by the lapse of 12 years from the date when it was passed.
2. The decree-holder made his first application on the 20th of March 1896 and his second on the 8th of February 1899. Both these are described as having been struck off.
3. His next application was on the 3rd of February 1902; but as in the meantime, the judgment-debtor had died, he applied to the Court to execute the decree against the legal representatives of the deceased, his song, Babu Mudeshwar Singh and Babu Rateshwar Singh.
4. The sons opposed on the ground that in the circumstances, they were not their father's legal representatives. This objection prevailed in the Court of the Subordinate Judge, and the execution case was dismissed. On the 12th of August 1904, the High Court discharged this order, and remanded the case to the Court below with the direction that the heirs of the deceased judgment-debtor be substituted in his place upon the record as his legal representatives. But the question of the liability of the ancestral property to attachment and sale was left open. On the 4th of February 1905, the decree-holder made his fourth application; on the 24th of June 1905, it was dismissed. ON the 19th of July 1905, the fifth application, was made, and it was thereby prayed that the execution case 'which was struck off on the 24th June 1905, may be restored to its former number; that attachment process may be issued' in respect of the properties therein described. In response to this application several properties were attached; but one Laliteshwar Singh, a brother of the deceased judgment-debtor, preferred a claim on the allegation that Babu Guneshwar Singh, their father, had left a Will, and that he, the claimant, was its executor and so entitled to possession of the property under attachment.
5. The claim succeeded and on the 26th of February 1907, an order wag made in the execution proceedings for the release of the properties from attachment. Other claims were also made, but no reference was made to them in the course of the argument, nor were their circumstances placed before us. On the 18th of March 1907, the execution case was dismissed.
6. In the same year, Suit No. 267 of 1907 was instituted by Bhabeshwar Singh against his brother Laliteshwar challenging this testamentary title. On the 27th of May 1907, the District Judge decided adversely to Laliteshwar's claim, and his decree was confirmed on appeal by the High Court.
7. Once more, the decree-holder applied for execution and this time on the 24th of March 1908, three weeks after the disposal of the appeal.
8. His application contains a brief narrative of the facts, and an allegation that the claims which had impeded the execution were collusive and fraudulent. It concluded with a prayer in these terms: (1) That as having regard to the circumstances stated herein before and as in consequence of the fraudulent conduct of the judgment-debtors, the previous executions were rendered infructuous, your petitioner is entitled to extension of time under Section 230 of the Civil Procedure Code and to bring all the properties to sale which are specified in the vernacular petition annexed hereto and which forms part of this application. (2) That if the above prayer be, for some reasons or other, regarded by the Court as not fit to be granted, in that case, this application may be considered to be in continuation of the former Execution Case No. 152 of 1906 which, your petitioner begs once more to repeat, was dismissed for no laches on the part of this decree-holder. (3) That lastly having regard to the circumstances aforesaid, a review, under Section 623 of the Civil Procedure Code, may be made of the said order, dated the 18th March 1907, dismissing the said last Execution Case No. 152 of 1906, and the said execution case may be restored to the file and the decretal money may be recovered from the sale of the judgment-debtor's properties Nos. 1 to 6 of Schedule No. 2 as per list in the vernacular application, in respect of which the aforesaid claim Cases Nos. 18 and 19 were wrongfully preferred and erroneously allowed by the Court'.
9. It should be explained that Execution Case No. 152 of 1905, mentioned in the second of the above prayers, is that filed on the 19th of July, 1905, the new numbering being due to the transfer of the case from the Mozafferpore to the Darbhanga Court.
10. On the 6th of February, an order was made to the effect that the application was not properly one under Section 623 of the Civil Procedure Code, and after stating that the opposite party did not enter appearance, it proceeds: 'Properly speaking, it is an application for execution under Section 230, Civil Procedure Code, on the ground that the period of limitation for twelve years does not apply to the case as the decree-holder was precluded from executing the decree owing to the fraudulent actions of the judgment-debtors. The petitioner has filed an affidavit to show how the fraud was committed. The decree-holder has the right to execute the decree. The application must be treated as an application for execution of decree. This case be struck off.' This last sentence refers to the application so far as it might be regarded as one for review.
11. On the same date, the following order was made: 'As per orders passed this day in Miscellaneous Case No. 25 of 1908.' that is the order I have just read--'Application be registered as an execution case and notice under Order XXI, Rule 22, Act V of 1908, be issued to judgment-debtors fixing 5th March 1909.' This notice, it appears from the order-sheet, was served, and on the 12th of March, it was ordered that attachment be issued. On the 14th April, the attachment was served. Notice for drawing sale proclamations was served, and, as no objection was made, it was ordered on the 20th May 1909 that the sale proclamation be drawn and issued, fixing the 15th of July 1909 for sale.
12. On the 4th of August 1909, a petition under Section 47 of the Civil Procedure Code was filed on behalf of Ratheswar Singh, alleging that the execution of the decree was time-barred, and that the petitioner was not aware of the institution of the present execution case till the 31st of July last and could not, therefore, put in his objection earlier.
13. The decree-holder filed a petition of reply on the 14th August 1909, and therein he declared (among other things) that the objector's contention that the execution was barred by limitation was totally unfounded, and that, when this point had been settled by the Court and execution ordered after due notice, it was no longer open to the objector to re-open this question.
14. A further petition was filed on behalf of the objector on the 18th of September 1909, but it contained no traverse of the notice imputed by the decree-holder's petition.
15. On the 14th of March 1910, however, the Officiating Subordinate Judge held that the decree-holder's application for execution was barred under Section 48 of the Civil Procedure Code, and allowed the objection. From this order, the present appeal is preferred, and it is objected first that the learned Judge by whom this order was made had no power to interfere with the order of his predecessor; secondly, that the application, on which the order was made, was in continuation of a proceeding that was within time; thirdly, that in fact there was fraud which gave the decree-holder a further time within which to execute his decree; fourthly, that the bar prescribed by Section 234 operates in favour of the judgment-debtor alone and not of his legal representatives, and fifthly, that in any case the decree-holder is entitled to a deduction of the time occupied in the contest as to the decree-holder's right to proceed against the sons as the legal representatives of their deceased father. In my opinion, the decree-holder is entitled to succeed on the first of these points. The record shows that the order of attachment on the application of the 8th of March 1908 was made after service of notice; there is no allegation in the respondent's petition that notice was not served, nor is there proof to supplement the omission; and finally there is no finding by the Court of no notice even in its order of the 14th of March 1910. It seems to me, therefore, on the materials before us we must assume, as the order-sheet states, that the order of attachment was made on the 12th of March 1909 after due notice.
16. What power then had the Court to set aside that order, for that in effect is what has been done? Clearly, the subsequent order was not by way of appeal: nor can it be supported as by way of review, for the application on which it was made was not within the period prescribed by the Indian Limitation Act, nor had the Officiating Subordinate Judge, in the circumstances of this case, jurisdiction to entertain an application for review of his predecessor's order.
17. I fail, therefore, to see on what the jurisdiction assumed by the Officiating Subordinate Judge is based, nor was the learned and experienced Vakil who represented the respondent able to justify this order by reference to anything contained in the Code. In the view I take, it would serve no useful purpose to discuss the other points urged on behalf of the appellant, but there is one matter to which I would draw attention.
18. From the narrative of these long and tedious proceedings, it is, I think, apparent that the decree-holder has not been remiss; the delay has been occasioned by obstacles for which he cannot be held responsible. And so the decree-holder can claim with some show of reason that the case, viewed as a whole, presents those features which are regarded by the Court as a justification for holding that an application otherwise time-barred may be treated as one for the revival and continuation of earlier proceedings in execution. The decree-holder's application of the 24th of March 1908 was apt for this purpose, for it contained a prayer directed to obtaining such an order in case the Court thought fraud not established.
19. The Court's order does not in words treat the application as one for the continuation of the earlier proceedings, but had the respondent in response to the notice appeared and dislodged the decree-holder from his case of fraud, it would have been open to the Court to consider whether an order should not have been made in accordance with the decree-holder's alternative prayer. I allude to this as showing the inconvenience and possible injustice to the decree-holder were we to uphold the Officiating Subordinate Judge's order of cancellation.
20. In my opinion, then, the order of the 14th March 1910 must be reversed and that, which it professes to impugn, must stand.
21. Though we have decided, so far as this appeal goes, in the decree-holder's favour, the question of the liability of the ancestral property to attachment and sale still remains untouched. And so a long course of litigation is still open to the parties unless good sense prevails. The litigants are kinsmen, the decree-holder is the head of his house, and it was suggested by his Counsel that were he fitly approached, there might be a close to this long and costly contest, and the differences of these related litigants might be honourably composed. The suggestion is deserving of consideration.
22. The result of our decision is that the appellant must get his costs of this appeal and the application in the lower Court, hearing-fee in this Court five gold mohurs.