MANEKLAL NATTHALAL JINGAR Vs. OCHHAVLAL CHHAGANLAL

JUDGEMENT

(1.) This application raises a short point about limitation In respect of an application made under Order 21 Rule 97 of the Civil Procedure Code and arises under the following circumstances:

(2.) The petitioner-original decree-holder obtained a decree for possesdon against opponent No. 1-original judgment-debtor. He filed Darkhast No. 569 of 1964 and a warrant for possession was issued under Order 21 Rule 35 of the Civil Procedure Code. The opponent No. 2 resisted the delivery of possession and thereafter the petitioner withdrew his Darkhast on 2-4-1965. He filed another Darkhast No. 220 of 1965 and obtained a fresh warrant for possession on 25-4-1965. Opponent No. 2 again resisted the delivery of possession to the petitioner and the petitioner filed Miscellaneous Application No. 156 of 1965 on 26-4-1965 under the provisions of Order 21 Rule 97 to remove the resistance made by opponent No. 2 and for possession of the premises. It does not appear from the record of the case before us as to when the first resistance was made by opponent No. 2 but it was conceded on behalf of the petitioner that the first resistance was made more than 30 days before the filing of Miscellaneous Application No. 156 of 1965. The learned trial Judge dismissed this application on the ground that it was barred by limitation under Article 129 of the Indian Limitation Act 1963 (hereinafter referred to as the Act).

(3.) The learned trial Judge came to the conclusion that the second resistance was made by the same person in same character and therefore though the application was made within 30 days from the date of the second resistance by opponent No. 2 the limitation in fact began to run from the date of the first resistance; and since the application was filed more than 30 days after the first resistance it was barred by the provisions of Article 129 which prescribes for such an application a period of 30 days from the date of resistance or obstruction. Having arrived at these findings the learned trial Judge dismissed the application of the petitioner. It is against the dismissal of his application that the petitioner has filed this Civil Revision Application.