VADILAL DIPCHAND Vs. SHIVLAL BHOGILAL

JUDGEMENT

(1.) These two proceedings arise from the order originally passed by the learned Civil Judge (Junior Division) Chanasma on December 9 1963 in Civil Execution Application No. 38 of 1962 of his Court. The order passed was that the execution application was within the prescribed period of limitation excluding the time taken by the decree-holder in prosecuting another civil proceeding (execution application) in the Harij Court wherein the decree-holder had earlier filed Civil Execution Application No. 10 of 1961 on July 14 1961 which application had been dismissed by the learned Civil Judge at Harij by his order dated June 18 1962 By the latter order the Harij Court had upheld the contention of the judgment-debtor that it was the Court of Civil Judge at Chanasma which had passed the decree under execution that had the jurisdiction to entertain the execution application. On the very day on which the Harij Court had dismissed the Execution Application No. 10 of 1961 the decree-holder had rushed to the Court of Civil Judge at Chanasma which was the Court passing the decree and filed the execution application. ... ... ... ... ... ... ...

(2.) The relevant facts giving rise to this Second Appeal No. 74 of 1965 are not in dispute The respondent decree-holder named Shah Shivlal Bhogilal Manager of the joint Hindu family trading firm running in Harij in the name and style of Shah Shivlal Bhogilal had filed Regular Civil suit No. 40 of 1952 in the Court of the Civil Judge Junior Division at Chanasma District Mehsana. The suit was filed against the joint Hindu family trading firm running in the name and style of Vadilal Dipchand at Harij and against Dipchand Muljibhai and Vadilal Dipchand both of Harij as members of the firm and in their individual capacity. The suit which was for recovery of a sum of Rs. 6 675.06 np. with running interest and costs of the suit from the defendant was decreed as such by the Chanasma Court. Against the said decree an appeal being Civil Appeal No. 47 of 1954 was preferred by Dipchand Muljibhai and Vadilal Dipchand In the Court of the learned District Judge Mehsana which appeal was heard by the then 2nd Extra Assistant Judge who partly allowed the appeal and set aside the decree against Dipchand Muljibhai and also against the joint family trading Firm of Vadilal Dipchand. The learned Judge however confirmed the decree against original defendant No. 3 Shah Vadilal Dipchand who it may be stated is the judgment-debtor and the appellant in this appeal. The decree in appeal was passed on July 15 1958 It appears that during the pendency of this appeal No. 47 of 1954 before the learned District Judge the jurisdiction of the Chanasma Court relating to the suits arising from amongst others the Harij area was transferred to the newly constituted Court of the learned Civil Judge Junior Division Harij constituted by relevant notification issued by the State Government on April 2 1957 After the decision dated July 15 1958 in the appeal modifying the decree of the trial Court the original decree-holder who is the respondent in this appeal filed Civil Execution Application No. 10 of 1961 in the Court of the Civil Judge Junior Division at Harij for execution of the said decree. This execution application was filed on July 14 1961 As aforesaid in that application a contention was raised on behalf of the judgement-debtor that the Harij Court had no jurisdiction to entertain the execution application and that the jurisdiction in the matter vested only in the Court passing the decree viz. the Court of the Civil Judge Junior Divisions at Chanasma and the learned Civil Judge at Harij had upheld the contention of the judgment- debtor and dismissed the execution application of the decree-holder by order dated June 18 1962 It is not in dispute that it was on this very day that the decree-holder had rushed to the Court of the Civil Judge Junior Division at Chanasma and filed another civil execution application in that Court which was registered as civil execution application No. 38 of 1962 out of which this second appeal arises. As aforesaid in that civil execution application itself the decree-holder had stated it as a fact that he had earlier filed civil execution application in the Court of the Civil Judge at Harij and that it came to be dismissed by the learned Judge for want of jurisdiction and therefore he was presenting another execution application In the Chanasma Court to execute the same decree. By a specific averment made in the said execution application itself duly verified at the foot the decree-holder had prayed for exclusion of time taken in earlier prosecuting in good-faith another civil execution application in the Harij Court. The exclusion was claimed under sec. 14 of the Indian Limitation Act 1908 (IX of 1908). It was stated that excluding the time taken during the proceedings in the Harij Court in the execution application No. 10 of 1961 the present execution application which was filed by the decree-holder on that very day in the Chanasma Court was within time. I may here say that it is not disputed that if the time taken by the decree-holder in prosecuting the civil execution application No. 10 of 1961 in the Harij Court is excluded in computing the period of limitation prescribed for the execution application under the Indian Limitation Act the present execution application No. 38 of 1962 filed in the Chanasma Court is within limitation. This execution application was resisted by the judgment-debtor on the ground that it was Harij Court that had jurisdiction and that the decree-holder ought to have got the decree transferred to the Harij Court as the Harij Court was an independent Court. On these grounds it was contended that the execution application before the Chanasma Court was not filed within limitation. ... ... ... ... ... ... ...

(3.) Now it is not in dispute before me that if the time taken by decree-holder in prosecuting civil execution application No. 10 of 1961 in the Harij court is excluded for the purpose of computing the period of limitation prescribed in the present civil execution application No. 38 of 1962 which was filed in the Chanasma Court and out of which this second appeal arises will be within the prescribed period of limitation. I need therefore only consider Mr. Karlekars contention that sec. 14 of the Indian Limitation Act will have no operation in the matter.