P RAM KUMAR Vs. CHAUBE RUDRA DUTT

JUDGEMENT

(1.) This is a decree-holders' second appeal arising out of an objection that the execution application was barred by time. The relevant facts are these.

(2.) The decree under execution was passed by the Assistant Collector, first class, Kanpur, on 30-9-1938. Both the parties appealed to the District Judge. The decree-holders filed their vakalatnama in the judgment-debtor's appeal on 27-2-1939, while the judgment-debtor also filed his vakalatnama in the decree-holders' appeal, but the date is not known. Both the appeals came up for hearing on 15-5-1939. None of the parties seemed to have appeared and both the appeals were dismissed for default on that date. The decree-holders then filed an application for execution on 5-2-1942. The judgment-debtor objected that this application was beyond limitation as it was beyond three years of the date of the decree. His contention was that the order dated 15-5-1939 passed in appeal could not give a fresh starting point for purposes of limitation, as it was not a final order but was merely an order dismissing the appeal for default. The Assistant Collector accepted this contention and held that the application was time-barred. The decree-holders appealed to the District Judge. He dismissed the appeal.

(3.) The decree-holders have now come up in execution second appeal to this Court and the only point for consideration is whether the limitation for the execution application would be counted from the date of the decree, i. e. 30-9-1938, or from the date of the dismissal of the appeals for default, i. e., 15-5-1939.