ODHAVJI ANANDJI Vs. HARIDAS RANCHHORDAS

JUDGEMENT

(1.) THIS notice under Order XXI, Rule 22, Civil Procedure Code, 1908, is opposed on the ground that the application for execution is time-barred. The decree in this suit was passed on September 3, 1928, for Rs. 10,000 against the plaintiff. Defendant No.2 had made no application for execution at all till August 28, 1940. He then made the first application for execution being Application No.524 of 1940. The application is on the usual printed form prescribed by the High Court Rules, and in the last column, in respect of the mode in which the assistance of the Court is required, it is mentioned "By issuing a notice under Order XXI, Rule 22, of the C.P.C." As no application for execution had been made since the date of the decree, the office issued a notice on September 19, 1940, calling upon the plaintiff to show cause why the decree should not be executed against him. That notice could not be served on the plaintiff for a long time, and as a year was about to expire, according to the practice of the office an extra original notice had to be applied for, obtained and served before the notice could be brought for hearing. It appears that on defendant No.2's attorneys' application an extra original notice dated September 19, 1940, was issued by which the plaintiff was called upon to appear before the Chamber Judge on July 31, 1942, to show cause why the decree should not be executed against him. That notice was sealed on June 24, 1942, and at the top refers expressly to Application No.524 of 1940 That notice has now come for argument.

(2.) TWO objections are raised on behalf of the plaintiff : First, that the execution of the decree is time-barred and the other that the decree has been satisfied. On the first point it is urged that under Article 183 of the Indian Limitation Act, unless there is a revival of the decree before twelve years have expired, execution would be time-barred. It is argued that by the issue of a notice under Order XXI, Rule 22, alone the' decree is not revived, and the decision in Monohar Das v. Futteh Chand (1903) I.L.R. 30 Cal. 979 is relied upon to support that contention. It is further argued that the mere issue of a notice by the office does not by itself operate as a revival, which must mean an adjudication of the rights of the parties and an order of the Court that the decree was revived. In my opinion, this whole line of argument is based on a misconception of Article 183 of the Indian Limitation Act. That article provides that an application for execution may be made within twelve years. The proviso, dealing with the revival, has application only if the application for execution on the face of it was made more than twelve years after the date of the decree. In the present case the application for execution (No.524 of 1940) is within twelve years and therefore Article 183 is no bar to the execution of the decree.

(3.) NOTICE is therefore made absolute. Costs Rs. 50 allowed.