Sir Kameshwar Singh vs Jaiparkash Narain Singh and Others

Pande, J.—This appeal is directed against the order of the Subordinate Judge, Third Court, Gaya, u/s 47, Civil P.C., in an execution proceeding for the realisation of decretal dues under a rent decree which was passed on 7th May 1940. It appears that the decree-holder had made a previous application for execution which was registered as Execution case No. 128 of 1941. During the pendency of that execution case notice u/s 148(g), Bihar Tenancy Act, was served on 18th April 1943. That case was however, dismissed by the Court on 21st April 1943, on the ground of non-service of the notice. The decree-holder presented a second application for execution on 4th May 1943. The judgment-debtor objected to the entertainment of the second petition on the ground that no application for execution could be entertained within 45 days from the date of service of notice which is the period prescribed for payment of the decretal dues. This objection prevailed with the lower Court and the Court by its order dated 28th March 1944, directed the execution case to be struck off.

It is contended for the appellant that there is nothing in Section 158AA, Bihar Tenancy Act, which bars the decree-holder from putting in an application for execution of his decree within 45 days from the date of service of the notice, nor there is anything in that section which prevents the Court from entertaining an application within the said period of 45 days. It is stated that the section merely provides that if the judgment-debtor fails to pay to the decree-holder or deposit into Court the decretal amount, such amount may, upon an application made in this behalf, by, the decree-holder be realised by the attachment and sale of the property of the judgment-debtor, both movable and immovable. It is argued that the service of notice u/s 148(g), Bihar Tenancy Act, is not a condition precedent to the entertainment of an application for execution and it merely bars the realisation of the decree by attachment and sale of the judgment-debtor''s property within the said period of 45 days from the date of service of notice.

In support of the contention, reference is made to the decision of a Division Bench of this Court in Bibi Sayeeda Khatoon Vs. Bishundeo Singh, . This case is a clear authority in support of the contention of the learned advocate. In that case reference is made with approval to a previous: decision of Reuben J. in Ramcaran Singh v. Sarimati Janki Devi M.A. No. 152 of 1943, unreported. In that case, his Lordship pointed out that Section 158 A A, lays stress on the realisation of the decree by attachment and sale of the judgment-debtor''s property and not on the filing of an execution petition, that is to say, Section 158AA does not prohibit the filing of an execution petition, but only provides that the judgment-debtor should be given a further chance of complying with the terms of the decree against him before his property, movable or immovable could be put up for sale in realisation of the decree against him.

In Bibi Sayeeda Khatoon Vs. Bishundeo Singh, their Lordships laid down that non-issue and non-service of the notice u/s 148(g), Bihar Tenancy Act is not a bar to the decree-holder putting an application for execution of his decree. It is not a condition precedent to the executing Court obtaining jurisdiction to proceed with the execution itself. His Lordship Sinha J. observed:

Where the decree-holder comes on the very last day of limitation with a prayer to execute his decree, the Court can not throw out his application for execution on the ground of non-service of notice u/s 148(g), Bihar Tenancy Act. In such circumstances the only power given to the Court is to insist upon the decree-holder taking out notice u/s 148(g). Such a notice has to be taken and has to be served with a view to giving the judgment-debtor the opportunity of paying the decretal sum and if he does not avail himself of the opportunity, the law must take its course and the property must be sold in satisfaction of the decree.

With this observation I respectfully agree. That decision clearly concludes this appeal.

I would, therefore, set aside the order of the Court below and allow the appeal with costs. Hearing fee assessed at two gold mohurs.

Fazl Ali, C.J.

I agree.