BADRI PRASAD RASTOGI Vs. SURAJ NARAIN DUBE

JUDGEMENT

(1.) These two connected appeals arising from an execution of a decree can be disposed of by a common judgment, as a common question arises and the parties are the same in both the appeals. It appears that the decree-holder respondent obtained a decree for recovery of certain amount of money from the judgment-debtor appellant from the court of the Additional Civil Judge, Mirzapur. The decree-holder first filed an application for execution of the decree in 1956. In this application the court which passed the decree was described as the court of the Civil Judge and it was presented in that court. Some proceedings then took place but the decree was not finally satisfied and this application remained pending. In 1959 the decree-holder made another application for execution and in this application also the court which passed the decree was described as the Court of the Civil Judge and it was presented in the Court of the Civil Judge. While considering the objections of the judgment-debtor against the two applications the learned Civil Judge, for reasons not necessary to notice intimated the District Judge of Allahabad, who had the administrative control, that the execution be transferred from his file.

(2.) THE two applications for execution were ordered to be returned to the decree-holder for presentation to the proper court on 13-3-1964. The decree-holder then presented the two applications for execution on 28-3-1964 in the court of the Additional Civil Judge. It may be mentioned here that the description of the court which passed the decree in the two applications was not changed and it remained as the court of the Civil Judge. A fresh objection was then raised by the judgment-debtor to the effect that the two execution applications were barred by time on 28-3-1964, as they were filed in the proper court more than three years after the passing of the decree. On behalf of the decree-holder a plea based on section 14 of the Limitation Act was raised and it was pleaded that the two applications for execution were within time as the time spent during the pendency of the two applications filed under a bona fide mistake before the court of the Civil Judge be not taken into account and once it were excluded the presentation of the two applications for execution on 28-3-1964 would be within time. The decree-holder adduced evidence in support of the practice prevailing in Mirzapur which showed that the decrees passed by the Additional Civil Judge were put for execution in the parent court of the Civil Judge formally for execution.

(3.) BEFORE I consider the question whether the decree-holder was entitled to the benefit of Section 14 of the Limitation Act, I may point out one feature of the case. In one view it appears to me that the whole controversy which arose has hardly any legal foundation. Under the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887 I do not find the Court of the Additional Civil Judge amongst the classes of Court recognised by S. 3 of that Act. Section 4 of that Act empowers the State Government to alter the number of Civil Judges. It is in exercise of the power under that section that as many numbers of courts of Civil Judges are created under the administrative control of the District Judge in a district as the situation requires. Every court thus created under the administrative control of the District Judge and there may be more than one court, would be a Court of Civil Judge. The description of the Court created that it is the court of the Additional Civil Judge is merely for administrative convenience to distinguish it from the original court of the Civil Judge, nonetheless the court so created would be the court of the Civil Judge. Sometimes the courts so created are described as the court of the First Civil Judge, the court of second Civil Judge and so on or the court of the Civil Judge No. 1, Court of Civil Judge No. 2 and so on.