Raja Biswambhar Nath Sahi vs Mahesh Sahi

Kulwant Sahay, J.—The only question for decision in this appeal is whether the application for execution was barred by limitation. The decree was passed on the 18th May 1914. The second application for execution was made on the 4th October 1920, and in that execution case the last application to take some step-in-aid of execution was filed on the 15th December 1920. That execution case was dismissed and the third application for execution was made on the 18th December 1923. The present application was made on the 20th March 1925. The question is whether the third application was barred by limitation. If the third application was barred, then the present application would be evidently also barred. Having regard to the fact that the last step taken in the second execution was on the 15th December 1920, the third application filed on the 18th December 1923, would evidently be barred. But on reference to the order sheet of that execution case it appears that notice under Order 21, Rule 22, was served on the judgment-debtor and thereafter an order was made for attachment of the properties of the judgment-debtor and attachment was effected.

In the circumstances the principle laid down by the Privy Council in Mungul Pershad Dichit v. Girija Kant Lahiri [1882] 8 Cal. 51, would apply and the present application must be considered to be within time.

It was contended on behalf of the appellant that mere service of a notice under Order 21, Rule 22, would not save the application from the bar of limitation and reliance was placed on the case of Umed Ali v. Abdul Karim Chaprashi [1908] 35 Cal. 1060. In that case the learned Judges referred to Mungul Pershad Dichit''s case [1882] 8 Cal. 51 and observed that.

it was only necessary to point out that in that case an order for attachment made by the Subordinate Judge on an application, which would otherwise have been time-barred, was held to operate as a decision that the execution was not barred even though that decision was erroneous; but at the same time their Lordships of the Judicial Committee declined to differ from the rule laid down by the Full Bench in Bisseshur Mullick v. Maharajah Mahatab Chunder Bahadoor [1868] 10 W.R. 8 in which it was held that the mere service of notice on the judgment-debtor after the decree was barred was not a proceeding in execution merely because the judgment-debtor did not come in and oppose it.

Now, their Lordships did not interpret the decision of the Judicial Committee in Mungul Pershad Dichit''s case [1882] 8 Cal. 51 in the way in which the learned Counsel asks us to interpret in the present case. Their Lordships there held that mere service of notice on the judgment-debtor would not save the application from limitation unless there was some other proceeding in relation to the execution of the decree after the service of the notice.

In Sripati Charan Choudhry v. R. Belchambers [1911] 15 C.W.N. 661, Mookerjeer J., in considering a similar case observed as follows:

It is well settled that mere service of the notice upon a judgment-debtor u/s 248, Civil Procedure Code, is not by itself sufficient to debar him from urging the objection that an application is barred by limitation, when no order for execution has been made after the service of notice u/s 248.

In the present case we find that an order was made for attachment of the judgment-debtor''s properties after the service of notice under Order 21, Rule 22, This will bring the present case within the doctrine laid down in Mungal Pershad Dichit''s case [1882] 8 Cal. 51.

The present application is clearly within time.

This appeal is dismissed with costs.

Let the record be sent down as soon as possible.

Ross, J.

I agree.