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1957 DIGILAW 5 (ALL)

Krishna Kunwar v. Parbati

1957-01-01

HARI SHANKAR

body1957
JUDGMENT Hari Shankar, J. - The Appellant Krishna Kunwar, judgment debtor, has come up in second appeal against the order of the District Judge of Lucknow dismissing her objection u/s 47 of the Code of Civil Procedure. 2. It appears that the Respondent Srimati Parbati obtained a decree for money against three persons. Of the three judgment-debtors Mahant Har Krishna Das was personally liable under the decree while the other two judgment-debtors Bhaiya Satgur Prasad and Srimati Sunder Devi were made liable for satisfaction of the decree to the extent of the assets of the late Mahant Har Narain Das in their hands. After the decree Sunder Dei died and her daughter Srimati Krishna Kunwar Appellant brought on record in place of her deceased mother 3. The decree-holder sought to execute the decree by making an application in December 1947. It appears that the decree was passed on 1-6-1935. In the same year the Encumbered Estates Act came into force and one of the judgment-debtors, namely Satgur Prasad, applied u/s 4 of the Encumbered Estates Act for liquidation of his debts. An order was passed by the Collector u/s 6 of the Encumbered Estates Act on 20-9-1935. For some reasons with which we are not concerned in this appeal the proceedings under the Encumbered Estates Act were quashed u/s 20 of the Act by an order passed on 25-8-1944. When the present application was made in December, 1947, the objector raised two objections to the execution of the decree. The first was that the decree could not be put into execution by reasons of the 12 years rule mentioned in Section 48 of the Code of Civil Procedure. The second objection was that the property attached in execution of the decree was the personal property of the objector and therefore it was not liable for attachment and sale in execution of the decree which was against the assets of Mahant Har Narain Das. As regards the second objection that the property attached in the decree was the personal property of the Appellant, the two Courts below have held that the objector had failed to establish that it was her personal and separate property. In other words the finding of the two Courts below is that the property attached in the suit was liable for satisfaction of the amount claimed under the decree in suit. In other words the finding of the two Courts below is that the property attached in the suit was liable for satisfaction of the amount claimed under the decree in suit. The trial court further held that the Appellant had taken away sufficient property belonging to Mahant Har Narain Das and therefore the property in the case was in any case liable to be attached in satisfaction of the decree. This was a finding on a question of fact and in second appeal this finding cannot be disturbed, nor has any attempt been made to show that the decision of the two courts below was incorrect on this part of the objection. The main objection of the Appellant in the two Courts below was that u/s 48 of CPC the time limit for execution of a decree has been fixed as 12 years and since 12 years had elapsed at the time when the execution was sought, the decree could not be executed. This plea has been rejected by the two Courts below and after considering the arguments advanced by the learned Counsel for the Appellant I am satisfied that this contention has no substance. 4. It is no doubt true that u/s 48 of the CPC a decree remains alive for a period of 12 years and if any application made after the expiry of this period, no order for execution can be passed on that application. The present application was no doubt made after the expiry of 12 years but the decree-holder maintained that in computing the 12 years she was entitled to exclude the period during which the decree could not be executed by reason of the proceedings under the Encumbered Estates Act which remained pending till 1944. The learned Civil judge was of opinion that in view of Section 43 of the Encumbered Estates Act the decree-holder was entitled to the exclusion of the period from 20-9-1935, to 25-8-1944, in computing the 12 years. Both the Courts below have held that the decree-holder was entitled to the exclusion of this period. under Clause (c) of Section 43 of the Encumbered Estates Act, which runs as follows: 43(c). Both the Courts below have held that the decree-holder was entitled to the exclusion of this period. under Clause (c) of Section 43 of the Encumbered Estates Act, which runs as follows: 43(c). In computing the period of limitation prescribed for any suit or any other proceedings for the recovery of debts in respect of which a written statement has been filed u/s 10, the period from the date of the order of the Collector u/s 6 to the date of the order of the Special Judge quashing further proceedings under the Act shall be excluded. Learned Counsel for the Appellant has contended that the period of 12 years mentioned in Section 48 of the CPC is not a rule of limitation and, therefore, the aforesaid provision of Section 43(c) has no application. A perusal of Section 48 will make it clear that no decree can be executed after the lapse of 12 years. In effect it lays down that the decree will remain alive for a period of 12 years and if any application is made after that period, it will not be executed. This period of 12 years fixed in Section 48 is nothing but a period of limitation and Section 48 of the CPC is controlled by Section 43(c) of the Encumbered Estates Act. The Courts below were, therefore, right excluding the period from 20-9-1935, to 2(sic)-8-1944, during which the proceedings instituted by one of the judgment-debtors, Satgur Prasad, remained pending. 5. No other point was raised. The Courts below rightly dismissed the objection. The appeal is dismissed with costs.