Ganga Singh vs Sheo Prasad

Kulwant Sahay, J.—The question for consideration in the present appeal is whether the application for execution filed on 7th December, 1926, was barred by limitation. A previous application for execution was made in the year 1923, and on 21st September, 1923, the judgment-debtor paid Rs. 50 in part payment and prayed for a week''s time for payment of at sum of Rs. 200 and the balance in the month of October following. The Court granted time to the judgment-debtor to pay the money up to the 29th of September, 1923. No payment was, however, made on this date and the execution case was dismissed on 3rd of October, 1923. The learned Munsif held that time began to run from the 21st of September, 1923, which was the date on which a step-in-aid of execution was taken on behalf of the decree-holder when the petition of payment was signed and certified by him. On appeal the learned Subordinate Judge has held that time began to run from the 29th of September, 1923, i.e., on the expiry of the time granted to the judgment-debtor to pay a portion of the decree.

It appears that on the 24th of September, 1926, an application was made to the Court of Munsif of Muzaffarpur for transfer of the decree to the Court of the Munsif at Hajipur and the decree was transferred and the present application was filed in the Court of the Munsif at Hajipur on the 7th of December, 1926. The learned Subordinate Judge was of opinion that the application for transfer filed on the 24th of September, 1926 was a step-in-aid of execution and it was taken within three years from the 29th of September, 1923, and that, therefore, the present application was not barred by limitation.

The question depends upon the terms of Section 15, Limitation Act, which prescribes that in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded. The question is whether in the present case the execution of the decree was stayed by order of the Court. It is true that every order for adjournment of an execution case is not an order staying execution and each case has to be decided on a consideration of-the question whether the order has the effect of staying execution. In the present case the judgment-debtor paid a sum of Rs. 50 on the 21st of September, 1923, and asked for time to pay the balance and the Court granted him time up to the 19th of September, 1923. Therefore, from 21st September up to 29th September, 1923, the decree-holder could not take any step towards the execution of the decree. He was by the order granting time prevented from taking any further step and the order of the 21st September must, under the circumstances of the present case, be considered to be an order of stay of execution.

In Mt. Sahodra and Another Vs. Bhagwan Das, it was held that where on the request of the parties execution of a decree was stayed and the judgment-debtor was allowed a certain period to pay the decretal amount, a subsequent application for transfer of execution made within three years from the date of the expiry of the period allowed to the judgment-debtor was within times; and reference was made to the provisions of Section 15, Limitation Act. It has been contended on behalf of the appellant that the order of 21st September, 1923, was an order in furtherance and not in stay of the execution. This contention is obviously not sound. The decree-holder was prevented from taking any step during the period the order was in force and it cannot be said that the order was in furtherance of the execution.

In my opinion, the view taken by the learned Subordinate Judge is correct and the appeal should be dismissed with costs.

Macphepson, J.

I agree. It must be held in this particular case that the execution was in effect stayed for a week by order of the Court.