KUMAR DAULAT SINGH Vs. PRAHLAD RAI TULSAIN

JUDGEMENT

(1.) The only question for determination in this appeal by certificate is whether Execution Petition No. 35 of 1959 filed by the decree-holder is barred by time as contended by the appellants. A decree in the sum of Rs. 71,636 and costs was passed in favour of the decree-holder on April 28, 1953. In execution of that decree, certain properties belonging to the judgment-debtors were purchased by the decree-holder in an auction sale held on May 2, 1955. The sale was confirmed on June 3, 1955, but since the decree-holder did not supply the necessary stamps for the sale certificate within the time specified in that behalf, the sale was set aside and the execution petition was consequently dismissed.

(2.) On August 13, 1955, the decree-holder filed an application under Section 151, Code of Civil Procedure, for restoration of the sale but that application was dismissed on March 2, 1956. The Revision application filed by the decree-holder was dismissed by the High Court on September 21, 1956. Within three years thereafter, that is on September 19, 1959 the decree-holder filed Execution Petition No. 35 of 1959 and as stated above, the narrow question for decision is whether, as contended by the decree-holder (appellants ), this petition is barred by limitation.

(3.) It is not disputed that the time taken in the prosecution of the restoration application from August 13, 1955 to March 2, 1956 shall have to be excluded in counting the period of limitation for filing the execution petition, since the application is a step-in-aid of execution. But learned counsel on behalf of the appellants contends that the time taken thereafter in prosecuting the Civil Revision application in the High Court cannot be similarly excluded because, the filing of the Civil Revision Application is not a step-in-aid of execution. The contention in other words is that if the execution petition were to be filed within three years of March 2, 1956, it would have been within limitation but not if it is filed within three years of September 21, 1956. Learned counsel relies in support of this submission on certain decisions, particularly the one reported in Chandra Bali Kalar v. Baidyanath Banerjee, AIR 1946 Pat 471.