PRATAPCHAND Vs. LAKSHMAN PRASAD GUPTA

JUDGEMENT

(1.) THIS case illustrates the proverbial thorny path of execution which the decreeholder has to pursue before he is able to realise the decree. The decree in this case was passed by the Sub Court of Arrah in July 1938, and from 1941 onwards the Judgment debtors have been successfully obstructing the realisation of the decree. It is interesting to mention that in this court in the objection filed in the execution application (vide counter affidavit of Baijnath Prasad) it is stated the properties sought to be attached within the jurisdiction of this court are worth more than a lakh of rupees, and the only objection raised is a plea of limitation. A brief reference to the prior history of the proceedings taken in execution of this decree is necessary for a proper appreciation of the plea of limitation raised.

(2.) ON 20-7-1938, a money decree was passed by the Sub Court, Arrah, for a sum of Rs. 18,540. This decree was transferred to the Civil Judge, Allahabad for execution and in that court in E. P. 38 of 1941, there was an order for attachment of a sugar mill of the judgment debtors. As a result of the order passed by the high Court of Allahabad the execution proceedings were stayed and were revived on 13-5-1950. On 11-7-1952 the sugar mill was attached and it was sold in public auction on 19-2-1955. On objection raised by the judgment debtors under S. 4 of the Uttar Pradesh Encumbered Estates Act, the sale of the sugar mill was set aside on 31-5-1955. On 17-3-1956 an application was made for the transfer of the decree to the Madras High Court for execution as the judgment debtors possessed some immovable properties (buildings) in Madras and the decree was transmitted to this court for execution on 6-6-1956. On 13-8-1956 the present execution petition E. P. 323 of 1956 was filed in this court.

(3.) IN the affidavit filed in support of the execution petition is para 5 there is a brief reference to the above said facts, and it was claimed that the period during which the execution of the decree was prevented by reason of the stay order should be excluded under Section 15 of the Limitation Act is computing the period of limitation prescribed under Section 48 C. P. C. as the period of 12 years prescribed thereunder expired by 1950. It is necessary to mention at this stage at the outset that in the counter affidavit filed on behalf of the several respondents the only objection that was raised was Section 15 of the Limitation Act would not apply and no particulars were given as to why Section 15 would be inapplicable to the case.