Sri Raja Papamma Row Bahadur Zamindar Garu vs Gurijada Venkatappayya and Another

Muthusami Aiyar

The facts of the case are sufficiently stated by the judge in his order and the questions arising for decision are (1) whether when an application

for execution of a decree has been struck off and is in fact not pending the judgment-debtor is entitled to ask for a declaration that execution is

barred by Limitation, and (2) whether it is really so barred. I must answer both in the negative. The judgment-creditor has not applied for execution

or put the court in motion and u/s 42 of the Specific Relief Act a declaration can only be made in a suit. It does not appear to be the intention of

the legislature that orders in the nature of declaratory decrees should be made in execution proceedings. Again on the view that the act of the

District Munsif in striking off the application is not authorized by the CPC the application of the 2nd December 1886 is still pending. The real

contest in this appeal therefore is as to that application having properly ceased to be on the file. There was an order issued by a court of competent

jurisdiction that execution be stayed and its legal effect is limited to suspending the execution or temporarily keeping it in abeyance. I am not

referred to any section of the CPC which authorizes the Civil Courts to strike off an application for execution of their own motion when it is held in

abeyance for a time. In this case the application was struck off, after the order staying execution had been made and without the knowledge of the

parties concerned on the 31st December 1889. It is not a judicial act which can affect the rights of the judgment-creditor in any way or operate to

his prejudice. It was held in the case of Biswa Sonan Chunder Gossyamy v. Binanda Chunder Dibingar Adhikar Gossyamy, I. L. R, 10 C, 417

that there is no provision in the CPC for striking off a case and that the only proper mode of dealing with it, whether a regular suit or miscellaneous

proceeding is to dismiss it if there is any default in its prosecution. The same principle was acted upon in the case of Chintaman Damodar Agashe

v. Balshastri, I. L. R 16 B 301

The conclusion I come to is that notwithstanding the act of the District Munsif in striking off the application for execution, it is still pending in the

contemplation of law. I am of opinion that on these grounds the judgment-debtor''s petition should have been dismissed. I set aside the order of the

lower appellate court and dismiss the judgment-debtor''s petition with costs throughout.