Kara Pasi and Others vs Ram Nath Singh

Kulwant Sahay, J.—The question for decision is as to whether the application for execution made on the 9th January 1926, was barred by limitation. The decree, under execution was made on the 5th December 1919. The first application for execution was filed on the 24th November 1922, and an order was made on that date to issue notice upon the jidgment-debtor under Order 21, Rule 22, Civil P.C. On the 19th of December 1922, the decree-holder filed an application for time to file the identifier''s affidavit as regards the service of the notice and was allowed. On that date the return of service had not been received. On the 9th of January 1923, the Court executing the decree recorded the following order in the order-sheet:

Return of notice received. Decree-holder to take Lecessary steps by 13th January 1923.

No steps were taken by the decree-holder and the execution case was dismissed on the 13th January 1923. The present application for execution was made on the 9th of January 1926.

Both the Courts below have held that the direction of the Court to the decree-holder to take necessary steps given on the 9th of January 1923 was a step-in-aid of execution and gave a fresh start to the period of limitation. In my opinion this contention is unsound. Article 182 of the schedule to the Limitation Act provides that where an application is made to take some step-in-aid of execution of a decree or order, a fresh period of limitation will be computed from the date of that application.

In the present case there is nothing on the record to show that any application was made by the decree-holder on the 9th January 1923, for taking some step-in-aid of execution. It is contended, on behalf of the respondents that the order directing the decree-holder to take necessary steps must have been made upon an oral application of the decree-holder. There is, however, nothing on the record that the decree-holder was present in Court on that date and he did make that application.

In his present application filed on the 9th January 1926, there is no allegation that, on the 9th of January 1923, he did make any application to take some step-in-aid of execution. In the absence of any allegation and any evidence to the effect that an application to take some step-in-aid of execution was made by the decree-holder on the 9th of January 1923, it is clear that the present application made on the 9th January 1926 was barred by limitation.

The orders of the Courts below must, therefore, be set aside and the objection, allowed, and it will be held that the decree under execution is bayed by limitation. The appellants are entitled to their costs in this Court and in the Courts-below.

Ross, J.

I agree.