ANANDILAL Vs. RAM NARAIN

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 Madh Pra 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 Civil P. C., 1908. Since the question involved is a substantial question of law, the High Court has granted a certificate of fitness under Art. 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. I Ram Narain obtained a decree for Rupees. 5,548.18p. from the Court of the 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 O. 41, R. 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 Ratantal 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.) It is common ground that in that appeal the Judicial Committee passed an interim order dated August 16, 1940 directing that until further orders the properties attached in execution shall continue to remain under attachment but further proceedings for the sale thereof shall remain stayed. On November 24, 1944 the Judicial Committee dismissed the said appeal and consequently the interim stay stood dissolved. Thereafter, the present respondent No. 1 Ram Narain appears to have purchased the decree from the heirs of the original decree-holder and the execution proceedings were resumed The execution application filed by him was however dismissed for default on June 11, 1945. It was restored on December 14, 1946 but was again dismissed for default on January 21, 1954 as the counsel for the decree-holder stated that he had no instructions. Thereafter, a fresh application for execution was filed by the decree-holder on February 18, 1954. This application was opposed by the surety Ratanlal inter alia on the ground that it was barred by limitation having been filed beyond the period of 12 years prescribed by S. 48 of the Code.