LALTA SINGH Vs. BHAGWATI PRASAD SINGH

JUDGEMENT

(1.) This appeal has been referred by a learned Judge of this Court to a Bench for decision on account of certain conflicting decisions of different High Courts on the question as the what is and what is not "step in aid of execution of a decree" within the meaning of Article 182 (5) of the Limitation Act under given circumstances.

(2.) The facts are these. In a suit for partition of joint family properties a compromise decree was passed on the 5th of December, 1935, which was partly preliminary and partly final. It was preliminary in respect of certain immovable properties in which shares were defined and they were to be divided by metes and bounds later on. It was final with respect to two sums of money, namely, (1) Rs. 90 which was payable immediately, and (2) Rs. 600/- which was payable by the end of Baisakh 1343 Fasli, equivalent to May 1936. There were some objections regarding the decree and the matter went up in appeal. After the decision of the appeal a preliminary decree was drawn up on the 10th of September, 1943, on the basis of the appellate court's decision and in that decree the liability for the payment of the two sums on dates aforesaid had been upheld. On the 1st of November, 1945, the decree-holder applied for the preparation of a final decree to which objection was taken by the judgment-debtor on the 30th of March, 1946. The objection was disposed of by the Court on the 11th of February, 1947, and it was held that the decree of the 10th of September, 1943, was executable in respect of the two sums of Rs. 90/and Rs. 600/- stated above for which no final decree was necessary and that a final decree could be passed in regard to certain other property. On the 12th of February, 1947, that is on the day following the date of the order for the preparation of the final decree, an application was made in the Execution Department for the recovery of this sum of Rs. 690/-. The judgment-debtor raised objection to the effect that execution was time barred. The decree-holder, on the other hand, contended that since the preliminary decree passed by the appellate court was dated the 10th of September, 1943, and since the application for a final decree was made on the 1st of November 1945, that application was a "step in aid of execution" within the meaning of Article 182 (5) of the Limitation Act and consequently the execution petition that was made on the 12th of February, 1947, was within time. The executing court repelled the contention of the decree-holder and held that execution in regard to Rs. 690/- was time barred. Aggrieved with that decision the plaintiff decree-holder preferred the present appeal.

(3.) In support of his contention that the application for final decree was a "step in aid of execution" learned counsel for the decree-holder has relied upon Raghunath Singh v. Subedar Singh. ILR 14 Luck 453: (AIR 1939 Oudh 155) (A), Gulappa v. Erava, AIR 1922 Bom 118 (B), Kunhammad Hajee v. Kozhunammal, AIR 1923 Mad 38 (C) and Ram Narain v. Maharaj Singh. AIR 1940 Lah 337 (D). On the other hand, learned counsel for the respondent has relied upon a number of other decisions which we shall presently notice.