UMA SHANKAR MEHROTRA Vs. KANODIA BROTHERS

JUDGEMENT

(1.) THIS is a revision under Section 115, C. P. C. by Uma Shankar Mehrotra against the order dated 5-12- 1962 of the First Civil Judge of Kanpur, framing two issues for trial and determination as necessary under Order XXI, Rule 50(2). C. P. C.

(2.) THE material facts of the case are that Messrs. Kanodia Brothers Kanpur, obtained an ex parte decree against Messrs. S. Varma, Kanpur, for the recovery of a sum of Rs. 11,500. Messrs. S. Varma defendant, was to be served through the proprietors. Bhupat Prasad and Uma Shankar Mehrotra. THEy put in appearance, but Uma Shankar Mehrotra denied to be a partner or proprietor of the defendant-firm. THE ex parte decree was passed on 6-7-1955. It was on 27-7-1957 that the decree-holder applied. For execution of the decree by the attachment of the salary of Uma Shankar Mehrotra on the supposition that the case was covered by Clauses (b) and (c) of Order XXI, Rule 50(1), C. P. C. THE executing court recorded the finding that without the grant of the leave under Sub-rule (2) of Order XXI, Rule 50, C. P. C., the execution could not proceed against Uma Shankar Mehrotra and this order was eventually maintained.

(3.) THE point for consideration in this revision, therefore, is whether an application for leave under Order XXI, Rule 50(2), C. P. C., if governed by the provisions of the Limitation Act, comes within the purview of Article 181 or Article 182 of the Limitation Act. In case such an application is governed by Article 181, it shall be clearly time-barred as the application was made more than three years after the accrual of the right to apply; but if the application is governed by Article 182 or there is no limitation for such an application it shall be maintainable provided that the execution application is not barred by limitation.