Rameshwar Prasad Gupta v. Rajendra Prasad — 1951 DIGILAW 17 (PAT)

Judgment B.P.Sinha, J. 1. This is a decree-holders appeal arising out of an order under Sec. 47 of the Code of Civil Procedure. The objection of: the judgment-debtors has been upheld and the execution case has been dismissed as being barred by limitation. 2. The facts briefly put are the following. A decree was passed against the judgment-debtors on the 17th of March, 1939. Execution of the decree was taken out in 1939 in Execution Case No. 124 of 1939. On the 12th of September, 1939, the properties sought to be sold were attached. One of the judgment-debtors filed an application on the 29th November, 1939, objecting to the attachment of some of the properties on the ground that those properties were not liable to attachment and sale. This objection was numbered as Miscellaneous Case No. 150 of 1939, and it was allowed on the 6th of January, 1940. Against this order, there was an appeal to this Court, (Misc. Appeal No. 114 of 1940) by the decree-holder, and during the pendency of this appeal, the executing Court passed an order on the 28th of January, 1941, to the effect that the execution case be dismissed on part satisfaction, as it appears, some of the properties had been sold in the meantime. The Miscellaneous Appeal No. 114 of 1940 was allowed on the 2nd of September, 1941, and the case was remanded to the Court below for deciding the objection in accordance with law. On remand, the executing Court, by its order dated the 15th of January, 1942, rejected the objection to the attachment of some of the properties and asked the decree-holder to take steps. Against this order of the executing Court rejecting the objection, Miscellaneous Appeal No. 139 of 1942 was filed in this Court on the 23rd of April, 1942. But, it appears, the proceedings in execution were not stayed and property was sold at auction on the 18th of September, 1942, and on the 18th of November, 1942, the executing Court passed the following order t"Sheristadars report perused. Thirty days expired. Let the sale be confirmed and the execution case be dismissed on part satisfaction. Prepare sale certificate." On the 27th November, 1942, the order-sheet shows, the sale certificate was prepared, sealed, and signed. Thirty days expired. Let the sale be confirmed and the execution case be dismissed on part satisfaction. Prepare sale certificate." On the 27th November, 1942, the order-sheet shows, the sale certificate was prepared, sealed, and signed. On the 16th of December, 1942, the High Court ordered stay of delivery of possession pending the disposal of the Miscellaneous Appeal No. 139 of 1942, and on the 28th of July, 1944, the Miscellaneous Appeal No. 139 of 1942 was dismissed for non-prosecution. The order-sheet of the 29th of August, 1944, in the execution case shows that the copy of the order of this Court in Miscellaneous Appeal 139 of 1942 was received by the executing Court, and the decree-holder was asked to take steps by the 11th September, 1944, No steps having been taken --and perhaps none was necessary to be taken -- the Court ordered on the 9th of November, 1944: "No step taken. Case disposed of". The present application for execution has been filed on the 18th of July, 1947. The Court below has held that the execution case having been dismissed on part satisfaction on the 28th of January, 1941, and the present execution having been filed more than three years after, it was barred by limitation. 3. Mr. Rai Parasnath, learned counsel ap- pearing on behalf of the appellant, has contended that the final order in the last execution case was passed either on the 9th of November, 1944, the last order in the previous execution case, or at the earliest on the 28th of July, 1944, when the High Court dismissed Miscellaneous Appeal No. 139 of 1942. So far as the last order dated the 9th of November, 1944, is concerned, there is no doubt that that cannot be the final order in the execution case. That was the last order in that execution case, but it, by no means, can be said to be the final order passed upon an application for execution. The question, therefore, turns upon the interpretation of the words "final order" as mentioned in Article 182, Sub-clause (5) of the Indian Limitation Act. That was the last order in that execution case, but it, by no means, can be said to be the final order passed upon an application for execution. The question, therefore, turns upon the interpretation of the words "final order" as mentioned in Article 182, Sub-clause (5) of the Indian Limitation Act. That clause runs as follows: "Where the application next hereinafter mentioned has been made, the date of the final order passed on an application made in accordance with law to the proper Court for execution...,..........." There is no doubt in this case that the previous application for execution was in accordance with law. The only question is what is the final order which was passed in that execution case. Mr. Rai Parasnath has contended that, although the property had been sold on the 18th of September, 1942, and the sale was confirmed on the 18th of November, 1942, the matter had not become final between the parties as an appeal, at the instance of one of the judgment-debtors, was pending in the High Court and the question was whether the property which had been attached and ultimately sold was legally attached and sold. That matter cannot be said to have been finally decided by the executing Court having sold the property. The question was pending in the appellate Court as to whether or not the attachment was a valid attachment and whether the sale in execution was a valid sale. He argues that, if the High Court in appeal had decided that the property was not liable to attachment and sale, the sale, although held by the executing Court, would be of no effect. If, on the other hand, the appellate Court had decided that the property was liable to attachment and sale, the sale which was held by the executing Court during the pendency of the miscellaneous appeal in the High Court would stand as a good sale. Therefore, in either view of the matter, the final determination of the rights of the parties in respect of the property was subject to the decision of the appeal. In that view of the matter, the appellant contends that the order of this Court dated the 28th of July, 1944, was the order which could be said to be the final order in the execution case. In that view of the matter, the appellant contends that the order of this Court dated the 28th of July, 1944, was the order which could be said to be the final order in the execution case. In support of his contention he has relied upon a decision of the Privy Council in Annamala Chettiar V/s. Villiammai Achi, AIR (32) 1945 PC 176. In this case the decree-holder had taken the order of the executing Court to the appellate Court, and it was held that the order of the appellate Court was the final order so far as the execution case was concerned. In the present case, however, the matter is slightly different inasmuch as it was one of the judgment-debtors who had appealed against the order of the executing Court. Mr. Ramanugrah Prasad, learned counsel appearing on behalf of respondent No. 1, contends that the order of the executing Court dated the 18th November, 1942, must be held to be the final order in the execution case, the executing Court having on that date passed the order to the effect that the execution case was dismissed on part satisfaction, and he says that, so far as the executing Court was concerned, that was the final order disposing of the execution case by selling the property which the decree-holder wanted to sell and that thereafter nothing remained to be done by the executing Court, and, in that view of the matter, the order of that date must be the only final order in the execution case. He has relied upon a Full Bench case of the Allahabad High Court in Muhammad Taqi Khan V/s. Raja Ram, ILR (1937) All 272. In that case their Lordships were concerned with the interpretation of the words "final order" so far as the order of the executing Court itself was concerned. In that case the executing Court had passed the following order: "The decree-holders having received Rs. 300/-have granted two months time. Execution case struck off for partial satisfaction of the decree. Costs on judgment-debtors." It was held by their Lordships that that order coupled with the order for payment of cost^ indicated that the executing Court intended to dispose of the matter finally and that it was a final order. 300/-have granted two months time. Execution case struck off for partial satisfaction of the decree. Costs on judgment-debtors." It was held by their Lordships that that order coupled with the order for payment of cost^ indicated that the executing Court intended to dispose of the matter finally and that it was a final order. In my judgment, that case is of no help in deciding the matter as to whether the order of the appellate Court in appeal arising out of an objection to execution regarding the sale of certain property was the final order as contemplated by Article 182, Sub-clause (5) of the Limitation Act. In the Allahabad case there was no question of interpretation of any order of any appellate Court in execution proceedings. 4 In my opinion, on the facts which have been mentioned above, it is clear that the question whether the property was liable to attachment and sale was finally disposed of, not by the executing Court, but by the appellate Court in Miscellaneous Appeal No. 139 of 1942. The order of the executing Court was subject to the final determination of the question raised before it by the decision of this Court. Although the property had, in the meantime, been brought to sale arid the sale was confirmed by the executing Court, this sale was all the time subject to the final decision which might have been arrived at in the pending appeal in this Court I would, therefore, hold that the final order in the execution was the order dated the 28th of July, 1944, passed by this Court. In that view of the matter, the present application for execution cannot be said to be barred by time because it was filed within three years from that date. 5. I would accordingly allow the appeal with costs. B.P.Sinha, J. 6 I agree.