ANANT RAM Vs. BASDEO SAHAI

JUDGEMENT

(1.) This is an execution second appeal by the judgment-debtor against the order of the court below that the execution application by the decree-holder respondent for execution of the final decree under Order 34, Rule 5, Civil P. C., was filed within time.

(2.) The order for the preparation of the final decree was passed on 8-7-1937. The final decree was actually prepared on 23-7-1937. The decree mentions at the end: "It is issued today the 23rd July, 1937 under my signatures and seal of the court." Below this appear the signatures of the Civil Judge with the same date, 23-7-1937 as the date of his signing this decree.

(3.) The first execution application was presented on 17-7-1940 within three years of the date the final decree bore, but beyond three years of the date on which the order for the preparation of the final decree was passed. These 'proceedings became infructuous though the office had reported that the execution application was filed beyond time and the decree-holder had replied that the application was within limitation on account of the provisions of the Temporary Postponement of Execution of Decrees Act, 1937 (Act X of 1937). On 4-3-1942, the decree-holder filed the present execution application. The papers were ordered to be sent to the Collector for further proceedings on 11-8-1942 without issuing any notice of the execution application to the judgment-debtor. The judgment-debtor subsequently filed an objection under Section 47, Civil P. C., to the execution of the decree on the ground of limitation. The execution court agreed with the Judgment-debtor and held the execution to be barred by time. On appeal by the decree-holder, the court below held that the application was within time because the decree-holder was misled by the date of the decree being mentioned as 23-7-1937 in the decree itself. He relied on two cases in support of his view. The cases are: Nalini Kanta v. Kamaraddi, AIR 1933 Cal 239 (A) and Kali Prasad v. Mt. Bibi Aziz Fatma, AIR 1938 Pat 149 (B). Against the order that the execution should proceed, the application for execution being within limitation as the first application had been filed within limitation, the Judgment-debtor preferred the present appeal.