ABDUL RASHID Vs. SRI SITARAMJI MAHARAJ BRAJMAN

JUDGEMENT

(1.) ON account of divergence of opinion between two Division Bench decisions of this Court in Narain Te wari v. Brij Narain, AIR 1931 All 326 and Lalji v. Gajadhar, AIR 1962 All 431 this Execution Second Appeal filed by a judgment-debtor had been referred to a Full Bench.

(2.) THE short facts of the case are that the respondent-decree-holder obtained a compromise decree on 27-1-1954 for posses sion over the plots in dispute after demoli tion of certain constructions said to have been raised by the judgment-debtor. The compromise decree provided that the judgment-debtor would remove the constructions and deliver possession of the property to the decree-holder after the latter served him with a notice giving him two months' time to remove the construc tions. According to the compromise decree the decree-holder could serve notice upon the judgment-debtor whenever the former desired to make his own constructions over the said land. It was further provided in the compromise decree that in default of the judgment-debtor in removing his construc tions and delivering possession on service of notice the decree-holder shall be entitled to execute the decree for possession. The decree-holder served a notice on the judg ment-debtor on 22-10-1962, asking him to deliver possession of the land as provided in the compromise decree. The judgment-debtor did not deliver possession and hence the dec ree-holder filed an application for execution of the decree on 2-5-1963. That application was dismissed as not maintainable in law on 22-5-1963 without notice to the judgment- debtor. On 21-6-1963 the decree-holder made an application under Section 151, Civil Proce dure Code for recalling the order dated 22-5-1963 and for proceeding with the execution of the decree. That application was allow ed by the learned Munsif on 31-8-1963 and the order dated 22-5-1963 was recalled. Notice was issued to the judgment-debtor who filed objections dated 25-1-1964 to the execution application, including the objection that the order under Section 151, Civil Procedure Code was not competent. The judgment-deb tor's main objection however, was that the execution application, having been made after six years of the decree, was barred by limi tation. The learned Munsif dismissed the ob jections and held that the execution applica tion was not barred by limitation. The judg ment-debtor preferred an appeal which was dismissed and the order passed by the learn ed Munsif was affirmed. The present second appeal is directed against the orders of the courts below.

(3.) THE main point which has been canvassed on behalf of the appellant is that the orders of the courts below holding that the decree-holder's execution application was not barred by time are erroneous. His con tention is that the decree-holder could have given the notice in terms of the compromise decree and could have executed the decree on the very date on which it was passed and hence the limitation started running from the date of the compromise decree itself and Arti cle 182 of the old Limitation Act (Act No. IX of 1908) applied and the execution appli cation having been made after six years of the decree was barred by limitation. Reli ance was placed on behalf of the appellant on Narain Tewari's case AIR 1931 All 326 (supra). In that case a decree was obtained in 1912 by. Mst. Jokhna Tewarin against Raja Bahadur Brij Narain Rai and Rai Jagdish Narain Rai. The decree passed against them was for delivery of possession of Zamindari Property but it provided that the right of pos session was contingent upon the decree-hol der depositing in the court to the credit of the judgment-debtors certain sum of money. No date for payment of the same was speci fied by the decree. The decree-holder died. She did not fulfil the condition in her lifetime nor did she apply for execution of the decree. The application for execution was made by her sons and heirs on 31-7-1928. Money was deposited in the court to the credit of the judgment-debtors in September 1928. It was held by the High Court that Article 181 of the Limitation Act applied and Limitation would be three years from the date when the right to apply for execution accrued. The rule of law was thus stated: "Where a decree is not immediately exe cutable and the right to apply for execution depends upon the fulfilment of certain con tingencies provided for in the decree, Arti cle 182 is clearly inapplicable and the only Article governing the execution is the resi duary Article 181." On facts, however, it was held that the decree-holder had a right to apply that the money be deposited to the credit of the judgment-debtors on the very day that the decree was passed and there was nothing to preclude the decree-holder from depositing the amount immediately and asking for posses sion. In these circumstances it was inferred that the limitation started running from the date of the decree. Sen, J. observed: