Mt. Reshma Kuari vs Rameshwar Ojha and Others

Das, J.—The only question in this appeal is whether the application for execution is barred by limitation. The decree was obtained on the 29th November,1918, and on the 31st July, 1919, the decree-holder applied for execution by attachment and sale of three specific properties mentioned in the application. On the 21st August, 1919, attachment was effected. The judgment-debtor did not appear and on the 16th September, 1919, the Court settled the sale proclamation and fixed the 15th November, 1919, for sale. On the 12th November, the judgment-debtor appeared and filed an objection petition under Order 21, Rule 66 of the Code. It will be noticed that the time for making the objection had expired and as a matter of fact the sale proclamation was settled before this objection was filed in Court. The Court however, did not decide the objection on that date but adjourned it to the 15th November, 1919. On the 15th November, 1919, the decree-holder''s pleader appeared in Court and said that he had no instructions and the Court passed the order in these terms: "The execution case is dismissed for decree-holder''s default without costs to any party." On the 30th October, 1922, the present application for execution was presented and it was at once objected by the judgment-debtor that it was barred by limitation. Both the Courts have given effect to the objection of the judgment-debtor.

It is first contended that the application of the 30th October, 1922, should be treated as a continuation of the application of the 31st July, 1919. But two difficulties present themselves. In the first place the concurrent finding of the Courts below is that the execution case was dismissed for decree-holder''s default and it is well established that a subsequent application for execution can only be regarded as a continuation of the former one when the latter is dismissed without any fault or laches on the part of the decree-holder in the process of execution. The second difficulty is that the properties now sought to be sold in execution of the decree are not the same as the properties which were attached on the 21st August, 1919. It is true that two of the properties are the same, but there is a third property which is sought to be sold and which is different and was not sought to be sold in the application which was initiated on the 31st July 1919. In my opinion, the decision of the Court below on this point must be affirmed.

But then there is another question which has been raised before us by Mr. B.C. De and it is this. I have already stated that on the 12th November, 1919, the judgement-debtor presented an objection under Order 21, Rule 66. Section 19 of the Limitation Act provides: "Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

There was some difference of opinion at one time whether Section 19 applied to applications for execution. The Madras High Court answered the question in the negative, whereas all the other High Courts answered the question in the affirmative, but there is no difficulty under the present Limitation Act. Explanation 3 added to Section 19 of the Limitation Act of 1908 makes it clear that the provisions of the section are applicable to execution proceedings. It is, therefore, open to the decree-holder to contend that there was an admission of a present liability by the judgment-debtor in his signed petition of the 12th November, 1919, but it is not possible for us to decide this question finally. We have not the petition before us and it is impossible to say whether there was in that petition an admission of a present liability to satisfy the decree of the 29th November, 1918. The Court below must consider this point.

We allow the appeal, set aside the order passed by the Court below and remand the case to that Court for decision on the point now raised by Mr. B.C. De.

There will be no order as to costs.

Ross, J.

I agree.