Jangli vs Lala

Mehta, J.—This is an execution appeal by the judgment-debtor Jangli S/o Mehaku.

The short facts leading to this appeal are that in Civil Original Suit No. 54 of 1933, Lala S/o Rama obtained decree for Rs. 3554-8-0 on 29-2-1936 against the Defendant Jangli. In pursuance of the decree, Lala filed first execution apentitiesplication No. 22 of 1939 on 30-1-1939. This was disposed of on 16-10-1939. The second execution application No. 68 of 1942 was presented on 12-6-1942 and it was disposed of on 26-10-1942. The third execution application No. 375 of 1945 was presented on 10-4-1945 and it was disposed of on 1-3-1947. The present and the last execution application No. 65 of 1948 was presented on 30-8-1948. A notice under Order 21, Rule 22 was issued to the judgment-debtor.

The judgment-debtor contended that the decree has been passed on 29-2-1936 and the execution of the decree is more than 12 years old and is barred u/s 48, CPC Thereupon the decree-holder submitted an application stating that the third execution application No. 375 of 1945 which was filed on 10-4-1945 was stayed by the Munsiff Hatod in Civil Original Suit No. 113 of 1S46 on 6-8-1946 and he should be given deduction of time from 6-3-46 to 1-3-1947. In the third execution application the decree-holder applied for attachment and sale of the house of the judgment-debtor.

A third person preferred claim under Order 21, Rule 58 but his objection was dismissed and, therefore, he filed a declaratory suit No. 113 of 1946 in the Court of the Munsiff Hatod under Order 21, Rule 63. In that suit he made an application that pending the disposal of the suit, Execution case No. 375 of 1945 of the District Court be stayed and accordingly the Munsiff Hatod passed an order staying the execution on case No. 375 of 1945. The claimant''s claim was upheld and it ordered that the property be released from tachment on 1-3-1947. The Court held that u/s 15, Limitation Act period from 6-8-1946, 1-3-1947 shall be deducted and that the present execution application is within time. The judgment-debtor went in appeal and the learned District Judge, Indore confirmed the judgment and decree of the trial Court and held that the execution is within time and dismissed the (sic) peal. Hence this second appeal.

The main question for decision in the appeal is whether u/s 15, Limitation Act the decree-holder is entitled to the exclusion of time during which the execution proceedings were suspended. u/s 15, Limitation Act (sic) period of limitation prescribed for any suit, application for the execution of a decree, (sic) institution or execution of which has been stated by injunction or order, the time of the continuance of the injunction or order, the day which it was issued or made, and the day which it was withdrawn, shall be excluded, He in Original Suit No. 113 of 1945, the Mun(sic) passed the following order: vide Ext. 12 of Execution Case No. 65 of 1948. (After quoting the order in Hindi His Lordship proceeded:) (sic) can be considered as an absolute stay order the contention of Mr. Deo that only the attachment and sale of Immovable property was (sic) is not borne out by the wording of the (sic) order. In the face of this stay order it was (sic) possible for the decree-holder to proceed with the execution.

In Jira Bibi and Others Vs. Majiruddin Chowdhry, (A) it has been held Sir Asutosh Mookerjee J. that where consequence of an injunction for stay issued in a suit filed by a claimant to portion of the property sought to be sold execution of a decree, the Executing (sic) orders a slay of the entire proceedings, the decree-holder is entitled, u/s 15(1), Limitation Act, in calculating the limitation for a subsequent application for execution, to a deduction the time between the date whether order stay is made and the date when the order cease to exist. Here also the entire proceedings was stayed and hence the decree-holder is (sic) to deduction of time from 6-8-1946 to 1-3-1947 case reported in - Raja Kirtyanand Singh and Others Vs. Raja Pirthiohand Lal Choudhri, (B), cited by (sic) Deo, is not helpful. In this case the Court fused to give permission to proceed against properties of the judgment-debtor in the (sic) of a Receiver. Under these circumstances it open to the decree-holder to proceed (sic) against the person or other properties of judgment-debtor or surety and he did not cute the decree against either of them 12 years. Section 48(2) is of no help. Here must be noted that there was an absolute stay execution which rendered the decree-hold capable of taking out execution of the (sic) Hence Section 15, Limitation Act is applicator this case.

The next point urged was that the present execution application No. 65 of 1948 is a (sic) application and not a revival of the pr Execution application No. 375 of 1945. In opinion this contention is not correct. The order passed by the District Judge in Execution Application No. 375 of 1945 on 1-3-1947 is as follows:

The decree-holder is absent. His pleader is (sic)sent. The house which was attached in the proceedings has been declared by the Civil Court to be not liable to attachment. Nothing (sic) remains to be done in these proceedings. Closed.

This cannot be called the disposal of the application on its merits. In my opinion the present execution application is merely a continu(sic) or revival of the previous execution application No. 375 of 1945. As held in - "Tripura Sun(sic)ramma v. Abdul Khader'' AIR 1933 Mad 418 (FB) (C), the test to be applied for the principle of revival is that the interruption to the execution proceedings is due to an intermediate order which was afterwards set aside or the execution proceedings must have been rendered (sic)iructuous by some such obstacle and the interpretation to the execution should not have been (sic) by any fault or laches of the applicant. Where the former execution application is not due to any default or negligence on part of the applicant, the latter execution application will be deemed to be one for the re-(sic) of the former.

Under these circumstances I hold that the (sic)ment and decree of the trial Court is correct(sic) the execution to proceed.

The appeal is dismissed with costs.