ANANDILAL AND ANR. Vs. RAM NARAIN AND ORS.

JUDGEMENT

(1.) THE short point involved in this appeal by certificate from the judgment and order of a Full Bench of the Madhya Pradesh High Court dated October 17, 1969 (reported in : AIR 1970 M.P. 110) is whether a partial stay of execution of the decree like the one in question staying sale of the attached property is within Sub -section (1) of Section 15 of the Limitation Act. 1908 so as to entitle the decree -holder to claim exclusion of the period during which there was stay of sale but the property was to continue under attachment, for the purpose of computation of the period, of limitation provided by Section 48 of the Code of Civil Procedure, 1908. Since the question involved is a substantial question of law, the High Court has granted a certificate of fitness under Article 133 (1) (c) of the Constitution.

(2.) FACTS are somewhat complicated but it is necessary to disentangle them to bring out the point in controversy. One Ghasiram, the predecessor -in title of the present Respondent No, 1 Ram Narain obtained a decree for Rs. 5,548.18 p, from the Court of District Judge, Ujjain against one Bheraji, the predecessor -in -title of Respondents Nos. 2 and 3 Chunnilal and Anandilal, now the judgment -debtors. The decree was affirmed in appeal by the Gwalior High Court on April 5, 1938. During the pendency of the appeal, the High Court stayed execution of the decree under Order 41, Rule 5 of the Code on condition that the Appellants -defendants furnished security for the due satisfaction of the decree. Ratanlal, father of the two Appellants' Anandilal and Jankilal, executed a surety dated August 3, 1927. Against the decree passed by the High Court, the Defendants preferred a revision before the Judicial Committee of the Gwalior State which came to be dismissed on February 14, 1941. While the revision was pending before the Judicial Committee, the decree -holder Ghasiram put the decree in execution against the judgment -debtors as also against the surety on February 23, 1939 for attachment and sale of their immovable properties. It appears that some houses and certain zamindari lands of the surety Ratanlal were attached in execution of the decree. He raised objections to the attachment of his property but the same were rejected on December 9, 1939, Against the order dismissing his objections, the surety Ratanlal filed an appeal before the Gwalior High Court which was dismissed on July 22, 1940. He then filed a Miscellaneous Appeal before the Judicial Committee of the Gwalior State.

(3.) THE question is whether Respondent No. 1 Ram Narain, the assignee decree -holder, was entitled to exclusion of the period from August 16, 1940 to November 24, 1944 under Section 15 (1) of the Limitation Act for computation of the period of 12 years prescribed under Section 48 of the Code. The District Judge. Ujjain rejected the objection raised by the Appellants holding that although the stay of execution was partial inasmuch as only sale of the attached properties had been stayed by the Judicial Committee, the decree -holder was entitled to the benefit of Section 15 (1). The Appellants preferred an appeal before the High Court which was allowed by the learned single Judge by his order dated February 9, 1962. The learned single Judge held that an order of partial stay like the one in question granted by the Judicial Committee which only postponed the sale of the attached properties did not have the effect of making the decree in executable and, therefore, Section 15 (1) of the Limitation Act was not attracted. He understood the decision of Grille, C.J. and J. Sen, J. in Sitaram v. Chunnilalsa : ILR 1944 Nag. 250 : AIR 1944 Nag. 155 as laying down that Section 15 (1) was applicable only when there is absolute stay of execution.