Baldeo Thathwari Konhorai vs Lachman Lal Pathak and Another

Kulwant Sahay, J.—This is an appeal by the judgment debtor against an order of the District Judge of Gaya over ruling his objection to the execution of a decree and directing the execution to proceed.

The only objection raised was that the decree under execution was barred by limitation. It appears that before the present execution another application for execution of the same decree had been made, and some properties belonging to the judgment-debtor were sold on the 28th of February 1922. The judgment debtor filed an application for setting aside the sale under the provisions of Order 21, Rule 90 of the Civil P.C. This application was opposed by the decree holder who was himself the auction purchaser. On the 10th of June 1922 the application for setting aside the sale was dismissed for default. On that date, however, it appeal''s that the decree holder was present in the Court with his witnesses.

The present application for execution was filed on the 8th June 1925. This application is evidently time-barred. But it was contended on behalf of the decree-holder that his appearance on the 10th of June 1922 amounted to a step-in-aid of execution and gave a fresh start to the period of limitation. The learned Subordinate Judge held that the decree-holder''s appearance on the 10th of June 1922 did not amount to a step-in-aid of execution and that the present application was barred. The learned District Judge, on appeal, has held that the appearance of the decree-holder with his witnesses on the 10th of June 1922 amounted to a step-in-aid of execution, and that the present application was not barred by limitation.

He relied upon a decision of this Court where it was held that any step by the decree-holder to remove obstacles thrown by the judgment-debtor in the way of the execution of a decree was a step-in-aid of execution. He was of opinion that this principle was wide enough to include a case in which the decree-holder appeared with witnesses in a proceeding under Order 21, Rule 90 which was, however, dismissed for default.

I am of opinion that the view taken by the learned District Judge is erroneous. Article 182, Clause 5 of the First Schedule to the Indian Limitation Act provides that the period of limitation will begin to run from the date of an application to take some step-in-aid of execution. Here, no application was made by the decree-holder of the Court on the 10th of June 1922; the decree-holder was merely present in Court with his witnesses, but there was no occasion for him to take any step in Court inasmuch as the application under Order 21, Rule 90 was dismissed for default.

The mere appearance of the decree-holder in a proceeding under Order 21, Rule 90 which was, however, dismissed for default, cannot, in my opinion, amount to an application to take some step-in-aid of execution within the meaning of Clause 5 of Article 182, of the First Schedule to the Indian Limitation Act. The decision of the learned District Judge cannot be sustained.

The appeal must be allowed and the application for execution dismissed as barred by limitation. The appellant is entitled to his costs in this Court as well as in the Courts below. Hearing fee two gold mohurs.

Ross, J.

I agree,