Gobardhan Das Dwarka Prasad vs Satis Chandra Rai

Coutts, J.—This appeal arises out of an execution proceeding. It appears that a firm of the name of Gobardhan Das Dwarka Prasad obtained a decree against one Babu Satish Chandra Rai. The decree was obtained in 1917. An appeal was preferred and the appeal was dismissed on 5-1-1918. On 14-5-1920, one of the members of the firm of Bansidhar Dhundhunia made an application for execution under O. 21, R. 15 and on 12-6-1920, notice under O. 21, R. 22, was issued by the executing Court. On 31-7-1920, this application for execution was struck off as being defective.

On 12-3-1921, the application out of which the present appeal has arisen was filed. An objection was taken by the judgment-debtor that the application was barred by limitation as the application which was preferred on 14-5-1920, was no application at all but this objection was disallowed.

On appeal to the Dt. Judge the decision of the first Court was set aside and the application for execution was rejected apparently on the ground that the application which had been preferred on 14-5-1920, was not an application in accordance with the law, and that consequently the notice under O. XXI, R. 22, did not save limitation. The decree-holder has appealed. In my opinion the appeal must succeed. The application which was made on 14-5-1920, was no doubt a defective application but it was nevertheless, as has been admitted by the learned Vakil for the respondent, an application made in accordance with the provisions of O. 21, R. 15, Cl. (1). This being so, limitation is saved under Art. 182, CL (5) of the Limitation Act. It is contended, however, by the learned Vakil for the respondent, that the application was not a valid application inasmuch as the Court, when that application was filed, did not comply with the provisions of Rs. 15, Cl. (2). With this proposition, I am unable to agree and the learned Vakil appears to have confused the validity of the application with the discretion of the Court to reject or allow the application.

The Court has discretion under Clause (2), unless it sees sufficient cause for allowing the application, to disallow it; but the mere fact that Court does not allow the application does not make it any the less an application in accordance with law. The learned Vakil further suggests that possibly the application, was not a valid application because it did not comply with the provisions of R. n.

Rule 11, is the ordinary rule which governs applications for execution; but R. 15 is an exception to the general rule; and there is no doubt that in fact the application which was made on 14-5-1920, was an application made in accordance with the provisions of R. 15, sub-Cl. (1), and consequently limitation is saved by sub-Cl (5) of Art. 182. Apart from that moreover, limitation is also saved tinder sub-Clause (6) of Article 182 of Limitation Act, because of the issue of notice under O, XXI, Rule 22, on the 12th June, 1920.

Under sub-Clause (6) of Article 182 it is not necessary that the notice should be issued in respect of an application made in accordance with law, and it is now settled that a notice issued on a defective application saves limitation. In the present case the application was at most nothing more than a defective application and consequently the notice which was issued in accordance with it saves limitation.

The order of the learned District Judge in appeal is clearly wrong and must be set aside. I would accordingly set it aside and decree this appeal with costs in all Courts.

Das, J.

I agree.