Lachmi Prasad and Others vs Kapildeo Ojha

Fazl Ali, J.—It appears that the appellant having obtained a decree sometime in 1930 proceeded to execute it in 1933 but his application for execution was dismissed on September 16, 1933. The reason for the dismissal was that though the executing Court had directed him to supply within a certain time a talika of the judgment-debtor''s property which was wanting, yet he failed to do so within that time The next application for execution was made on May 25, 1936, when the question arose whether the execution was still within time. The learned Munsif before whom the application was made held that it was barred by limitation inasmuch as the application made in 1933 was not in accordance with law and in support of his view he relied upon the decision of the Allahabad High Court in Abdul Rafi Khan and Others Vs. Maula Bakhsh, . The decree-holder thereupon appealed to the District Judge who summarily dismissed the appeal with the observation that he argeed with the view of limitation taken by the Munsif. The appellant has now preferred a second appeal u/s 47, Civil Procedure Code. A reference to the decision in Abdul Rafi Khan and Others Vs. Maula Bakhsh, . shows that in that case the decree-holder had not complied with the provisions of Order XXI, Rule 12, which provides that where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. The learned Munsif has throughout his discussion proceeded upon the assumption that in the present case also the inventory under Order XXI, Rule 12, had to be filed but was not filed. This assumption he seems to have made upon the basis of the order-sheet (Ex. 1) in which the following orders are recorded:

14--9--33; Talika is wanting. The decree-holder to supply the same by 16--9--33.

16--9--33: No steps taken. Ordered--rejected.

Now it appears to me that in order to decide whether the application of 1933 was or was not in accordance with law, it was necessary for the Courts below to have bad that application before them and the question could not be decided simply with reference to the orders which I have quoted just now. It is not clear whether in the execution case of 1933 the decree-holders in fact wanted to proceed against any properties which though belonging to the judgment debtors were not in his possession or whether any inventory of properties was necessary at all. It is also not known what was the mode in which the assistance of the Court was required in the application made by the decree holders in 1933. It has been held in Pitambar Jana Vs. Damodar Gachait and Others, , that an application can be held to be not in accordance with law only if the defendant''s omissions to be found therein were such as to make it impossible for the Court to issue execution upon it and not merely because it was defective in some minor particulars. The judgment of the learned Munsif, though it contains an admirable discussion of the law on the subject, does not refer to the application for execution which was made in the year 1933 and it is unfortunate that the learned District Judge also passed his orders in this case without looking into that application. It appears to me that the question of limitation cannot be properly decided without reference to that application. I therefore allow this appeal, set aside the judgment of the District Judge and remand the case to him for disposal according to law after sending for the entire record of the execution case of 1933 including the application for execution made in that year. Costs will abide the result.