Iqbal Ahmad, Member
1. The question for consideration in the present appeal is whether an appln. for execution, dated 25-7-1999, was within time or was barrad by limitation & on the answerto that question depends the fate of this appeal.
2. The decree under execution is a simple money decree, dated 15-8-1988 in favour of Mani Ram Shah & Sundae Shah against the J. D. applts.
3. The first appln. for execution was filed on 1-7-1990 & a house of the J. Ds. was attached & put to sale. The bid offered at the auction-sale was inadequate & the executing Ct. (Munsiff of Jammu), on 16 9-1933, ordered the execution file to be consigned to the record room with the direction that the 'attachment of the house shall continue.'
4. The next appln, for execution was filed by the two D. Hs. on 29-8-1994, & the execution Ct. on 2-9-1994, ordered the previous file, which had been consigned to the record room, to be sent for. On an examination of the previous execution file the Ct. took note of the fact that the house had no been released from attachment & in due coarse ordered the house to be put to sale. The bid offered was again low & on 11-8-1995, the Ct. ordered that 'fresh auction be made.' The house again appears to have been put to sale bus the price offered was, in the opinion of the Ct. inadequate & on 27-10-1995, the Ct. directed the counsel for the D. H. 'to instruct his client to increase the bid.' In the meantime Maniram Shah, one of the D.Hs., died & an appln. to bring his legal representatives upon the record was filed. The caee was then adjourned on various dates to enable the D. Hs. to deposit process-fee for the issue of notices as regards the appln for substitution of names as also for the payment of the fee for the issue of sale proclamation. The D. Hs. inspite of various adjournments, did not make the required deposits, with the result that on 1-3-1996, the Ct. passed the following order : 'None is present. It was incumbent on the D. H. to be present to prosecute the case ...... In default of D. H's presence, the case be consigned to record room as infruotuous.'
5. The third appln. for execution was filed only by the legal representatives of the deceased D. H. Mani Ram Shah, on 28-3-1998. It was signed by Mr. Girdhari Lal Gupta, Advocate as also by Hansraj one of the legal representatives of Mani Ram Shah on his own behalf and as general attorney on behalf of the other legal representatives of Mani Ram Shah. Again the D. H. appcts. made repeated defaults in the payment of process fee & on 9-4-1998, the Ct. ordered 'the file to be consigned to the record room as infructuons.'
6. The fourth & the last appln. for execution was filed on 28-7-1999 & the question for decision, as already indicated was whether this appln. was or was not barred by limitation. The first execution Ct. viz. Munsiff of Jammu, held that the appln. was within time & ordered the execution to proceed.
7. On appeal, by the J. Ds. the decision just referred to was reversed by the Dist. J. He took the view that the 3rd appln. was ''presented by L. Ghirdbari Lal' & as Mr. Ghirdhari Lal had not filed a vakalatnama on behalf of the D. H appcts. the appln was not presented by a duly authorised person & therefore, was not in accordance with law. He further, held that 'this appln. was by no means in continuation of previous proceedings.'
In this view of the matter, he allowed the appeal before him & dismissed the appln. for execution.
8. On appeal by the D. Hs the H. C. formulated the question for consideration as follows:
'Whether the appln. filed on the 25th Katik, 1999, is a fresh appln. or in continuation of the previous execution proceedings which were pending before the executing Ct?'
That Ct. held
'the execution proceedings commenced by the appln. of 1-7-1990, were never finally disposed of & the appln, now under consideration was, in substance as well as in form, an appln. to revive & carry through a pending execution proceeding suspended by the executing Ct;'
& that the last appln. filed on 25-7-1999, was not a fresh appln. & as such was within time.
9. The counsel for the J. D applts. subjected the reasons advanced by the learned Judges of the H. C. in support of the conclusion arrived at by them, to an adverse criticism & maintained that the order dated 1-3-1996, passed by the execution Ct. finally disposed of the first two apples. for execution & neither the 3rd nor the fourth appln. for execution could be deemed to be applns. for revival of any previous execution proceedings. In the view that bhe Board is inclined to take, it is unnecessary to express any opinion as to the soundness of the reasons advanced by the H. C. in support of the conclusion arrived at by it.
10. It would be noted that each of the four successive applns. for execution referred to above, was filed within three years of the final order passed by the execution Ct. disposing of the immediately preceding applns. It is, therefore, manifest that, if each of the four applns was in accordance with law, no question of limitation can arise. The counsel for the J. D. applts conceded that the first two & the fourth appln. for execution were in accordance with law He, however, submitted that the third appln. having been presented by an unauthorised person, viz. by L. Girdhari Lal, was not in accordance with law & therefore, in the computation of the period of limitation, the third appln. & the period during which it remained pending, could not be taken into account.
11. There was an interval of more than three years between the date of the final order passed on the 2nd appln. for execution & the presentation of the 4th appln. for execution. iT is, therefore, obvious that, if the third appln. for execution was not in accordance with law, the 4th appln. was barred by limitation.
12. The Board is, however, of the opinion that the J. D. applts. cannot be allowed to raise the point that was argued by their counsel before the Board. The objection now raised to the validity of the 3rd appln. for execution was not set forth in the objections filed by the J. Ds. in the first execution Ct. nor was the point argued before that Ct. Even in the memorandum of appeal filed by the J. D's in the Ct. of the Dist. J. the objection to the validity of the 3rd appln. on the ground indicated above was not raised, & the point appears to have been raised for the first time in arguments before the Dist. J. The D. Hs. had no opportunity to put their case on the point before the Munsiff of Jammu. If the point had been raised before the Munsiff, the D. Hs. could have met the point in a variety of ways. The 3rd appln. was, as already stated, signed by Hansraj on his own behalf & on behalf of the other legal representatives of Mani Ram Shah. Hansraj could have led evidence to prove that he himself presented that appln. or he may have led evidence to prove that L. Girdhari Lal had been duly authorised to present the petn. It is clear that, in the absence of an opportunity being afforded to the D. Hs. to meet the belated objection raised by the J. Ds. it is impossible to speculate as to the grounds that could have been advanced by the D. Hs. to frustrate the objection raised by the J. Ds. for the first time before the Dist. J. Under the circumstances it was not fair to the D. Hs. to allow the 3. Ds. to raise the point that they did before the Dist. J, The Board, therefore, is of the view that the Dist. J. was wrong in allowing the point to be argued before him & in dismissing the 4th appln. for execution on the view taken by him as regards that point.
13. The inevitable conclusion, therefore, is that the 3rd appln was in accordance with law & the 4th appln. was well within time.
14. The Board will aceordingly humbly advise His Highness that this appeal be dismissed with costs.