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1951 DIGILAW 40 (MP)

Jangli v. Lala

1951-07-28

MEHTA

body1951
JUDGMENT : 1. This is an execution appeal by the judgment-debtor Jangli s/o Mehaku. 2. The short facts leading to this appeal are that in Civil Original Suit No. 54 of 1933, Lala s/o Rama obtained decree for Rs. 3554-8-0 on 29-2-1936 against the defendant Jangli. In pursuance of the decree, Lala filed first execution application No. 22 of 1939 on 30-1-1939. This was disposed of on 16-10-1939. The second execution application No. 68 of 1842 was presented on 12-6-1942 and it was disposed of on 26-10-1942. The third execution application No. 375 of 1945 was presented on 10-4-1945 and it was disposed of on 1-3-1947. The present and the last execution application No. 65 of 1948 was presented on 30-8-1948. A notice under O. 21, R. 22 was issued to the judgment-debtor. 3. The judgment-debtor contended that the decree has been passed on 29-2-1936 and the execution of the decree is more than 12 years old and is barred under S. 48, Civil P.C. Thereupon the decree-holder submitted an application stating that the third execution application No. 375 of 1945 which was filed on 10-4-1945 was stayed by the Munsiff Hatod in Civil Original Suit No. 113 of 1946 on 6-8-1946 and he should be given deduction of time from 6-8-46 to 1-3-1947. In the third execution application the decree-holder applied for attachment and sale of the house of the judgment-debtor. A third person preferred claim under O. 21, R. 58 but his objection was dismissed and, therefore, he filed a declaratory suit No. 113 of 1946 in the Court of the Munsiff Hatod under O. 21, R. 63. In that suit he made an application that pending the disposal of the suit, Execution case No. 375 of 1945 of the District Court be stayed and accordingly the Munsiff Hatod passed an order staying the execution on case No. 375 of 1945. The claimant's claim was upheld and it was. ordered that the property be released from attachment on 1-3-1947. The Court held that under S. 15, Limitation Act period from 6-8-1946 to. 1-3-1947 shall be deducted and that the present execution application is within time. The judgment-debtor went in appeal and the learned District Judge, Indore confirmed the judgment and decree of the trial Court and held that the execution is within time and dismissed the appeal. Hence this second appeal. 4. 1-3-1947 shall be deducted and that the present execution application is within time. The judgment-debtor went in appeal and the learned District Judge, Indore confirmed the judgment and decree of the trial Court and held that the execution is within time and dismissed the appeal. Hence this second appeal. 4. The main question for decision in this, appeal is whether under S. 15, Limitation Act the decree-holder is entitled to the exclusion of time during which the execution proceedings were suspended. Under S. 15, Limitation Act the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. Here in Original Suit No. 113 of 1945, the Munsiff passed the following order : vide Ext. 12 of Execution Case No. 65 of 1948. (After quoting the order in Hindi His Lordship proceeded :) This can be considered as an absolute stay order and the contention of Mr. Deo that only the attachment and sale of immoveable property was stayed is not borne out by the wording of the stay order. In the face of this stay order it was not possible for the decree-holder to proceed with the execution. In 'Jira Bibi v. Majuddin Chowdhury', AIR 1921 Cal 594 (A) it has been held by Sir Asutosh Mookerjee, J. that where in consequence of an injunction for stay issued in a suit filed by a claimant to a portion of the property sought to be sold, in execution of a decree, the Executing Court orders a stay of the entire proceedings, the decree-holder is entitled, under S. 15(1), Limitation Act, in calculating the limitation for a subsequent application for execution, to a deduction of the time between the date whether order for stay is made and the date when the order ceases to exist. Here also the entire proceedings were stayed and hence the decree-holder is entitled to deduction of time from 6-8-1946 to 1-3-1947. A case reported in - 'Kirtyanand Singh v. Pirthichand Lal', AIR 1929 Pat 597 (B), cited by Mr. Deo, is not helpful. Here also the entire proceedings were stayed and hence the decree-holder is entitled to deduction of time from 6-8-1946 to 1-3-1947. A case reported in - 'Kirtyanand Singh v. Pirthichand Lal', AIR 1929 Pat 597 (B), cited by Mr. Deo, is not helpful. In this case the Court refused to give permission to proceed against the properties of the judgment-debtor in the hands of a Receiver. Under these circumstances it was open to the decree-holder to proceed either against the person or other properties of the judgment-debtor or surety and he did not execute the decree against either of them within 12 years. Section 48(2) is of no help. Here it must be noted that there was an absolute stay of execution which rendered the decree-holder incapable of taking out execution of the decree. Hence S. 15, Limitation Act is applicable in this case. 5. The next point urged was that the present execution application No. 65 of 1948 is a fresh application and not a revival of the previous Execution application No. 375 of 1945. In my opinion this contention is not correct. The order passed by the District Judge in Execution Application No. 375 of 1945 on 1-3-1947 is as follows : "The decree-holder is absent. His pleader is absent. The house which was attached in these proceedings has been declared by the Civil Court to be not liable to attachment. Nothing more remains to be done in these proceedings. Closed." 6. This cannot be called the disposal of the application on its merits. In my opinion the present execution application is merely a continuation or revival of the previous execution application No. 375 of 1945. As held in - "Tripura Sundaramma v. Abdul Khader', AIR 1933 Mad 418 (FB) (C), the test to be applied for the principle of revival is that the interruption to the execution proceedings is due to an intermediate order which was afterwards set aside or the execution proceedings must have been rendered infructuous by some such obstacle and the interruption to the execution should not have been occasioned by any fault or laches of the applicant. Where the former execution application is cloyed not due to any default or negligence on the part of the applicant, the latter execution application will be deemed to be one for the revival of the former. 7. Where the former execution application is cloyed not due to any default or negligence on the part of the applicant, the latter execution application will be deemed to be one for the revival of the former. 7. Under these circumstances I hold that the judgment and decree of the trial court is correct and the execution to proceed. 8. The appeal is dismissed with costs. Appeal dismissed.