RAMESH CHANDRA Vs. SETH GHANSHIAM DASS

JUDGEMENT

(1.) THIS is a judgment-debtor's appeal arising out of execution proceedings. A preliminary decree for partition of certain joint family property was passed on 18-5-1933 against the appellant and his father. They filed an appeal to the High Court which was dismissed on 30-3-1939. They went up to the Privy Council in appeal. The appeal was, however, dismissed with costs on 6-4-1948. During the pendency of the appeal to the Privy Council the trial court passed the final decree on 28-4-1945. This decree was against the appellant alone as his father Basdeo Sahai had died during the pendency of the appeal in the Privy Council. The decree directed a partition of the immoveable property in suit, and also awarded to the plaintiff a certain amount to be paid by the appellant. An execution application to execute the final decree was made on 8-9-1949 as against the appellant and the prayer was to realise the amount decree by attachment and sale of the personal property of the appellant. The execution application was obviously within three years of the decision of the appeal from the preliminary decree by the Privy Council, but beyond three years of the date of the final decree. Ramesh Chandra objected to the execution of the decree on several grounds out of which we are concerned only with two in the present appeal, namely that the execution application was barred by time as it was made more than three years after the date of the final decree and that the decree could not be executed against the personal property of Ramesh Chandra, judgment-debtor. These objections were dismissed by the court below and the judgment-debtor has now come up in appeal to this Court.

(2.) SO far as the objection regarding the execution pf the decree against the personal property of ramesh Chandra is concerned, the execution Court is bound by the terms of the decree and cannot go behind them. The decree as passed was against the appellant personally. It has, therefore, to be executed against him as such.

(3.) AS regards the objection that the execution application was barred by time, the point to be decided is whether the starting point of time for computing the peripd of limitation for execution of a final decree in a suit can be the date of the order of the appellate court in an appeal not from the final decree itself but from the preliminary decree. There appears to be a conflict of authority in India on the point. The matter is governed by the provisions of Article 182, Clause (2), limitation Act. Article 182 runs as follows : 1 2 3