CHEMIST FIRM Vs. ISHWARLAL KARSONDAS KAPADIA

JUDGEMENT

(1.) THIS is a revision application by the original defendants in R. A. E. Suit No. 6184 of 1964 in the Court of Small Causes at Bombay. The plaintiffs filed a suit against them for ejectment in respect of the suit premises. On 10th October 1955 a decree in ejectment was passed against them, directing them to vacate the premises and to hand over vacant possession to the plaintiffs on or before 10th October 1959. However, before this date, the defendants filed a suit in the Bombay City Civil Court, being suit No. 3100 of 1959 for a declaration that they were the tenants of the plaintiffs in this suit and for an injunction restraining the plaintiffs in this suit from executing the ejectment decree passed by the small Cause Court. On 22nd October 1959 the defendants were granted ex parte injection on a notice of motion came up for hearing on 17th November 1959, when the following order was passed thereon:-"on the defendants undertaking not to execute the decree dated 10th October 1955 in suit No. 6184 of 1954 , pending the disposal of this suit, no order on the motion save and except that costs be costs in the cause. "

(2.) ON 17th September 1964 the City Civil Court ordered the plaint in the suit of the defendants in the Small Cause Court suit to be returned to them for presentation to the proper Court. It is an admitted fact that the plaint has not thereafter been represented to any court. On 11th March 1965 the plaintiffs applied to the Small Cause Court for execution of the ejectment decree. The defendants applied for setting aside the execution on the ground that execution was barred by Article 182 of the Indian Limitation Act, 1908. The plaintiffs relied upon the provisions of Section 15 of the Indian Limitation Act and contended that time form 22nd October 1959 when ex parte injunction was granted by the City Civil Court to 17th September 1964 when the plaint was returned to the defendants for presentation to the proper court be excluded on the ground that due to an injunction and later due to an undertaking being in force, the plaintiffs were prevented form executing the decree. The learned Judge who heard this application decided in favour of the defendants and held that the execution application was barred by the law of limitation. Against this the plaintiffs filed an appeal before a Bench of the Small Cause Court. This appeal was allowed on 7th December 1967 and against that order, the defendants have in their turn come in revision to this Court.

(3.) MR. Dhanuka appearing for the defendants has fairly conceded that in any event time between 22nd October 1959 when an ex parte injunction was obtained and 17th November 19590 when an undertaking was given has to be excluded under Section 15 of the Indian Limitation Act, 1908. The controversy between the parties in whether the period between the parties is whether the period between l7th November 1959 and 17th September 1964 during which an undertaking was in force should be excluded or not. It is agreed that in case this period has to be excluded, the execution application will be within time and otherwise it would be barred by the law of limitation.