ANANT GOVIND JHARA Vs. MATAJI RAGHUNATHJI RATHOD

JUDGEMENT

(1.) The above first appeal is filed by the judgment-debtor, challenging the order, passed by the IInd Joint Civil Judge, Senior Division, Poona, to execute, by issuing the warrant under Order 21, Rule 46, upon Darkhast No. 74 of 1966, filed on April 28, 1966, for executing a money decree, passed in Special Civil Suit No. 154 of 1953, dated October 24, 1953.

(2.) The learned Civil Judge thought that the period of seven years between 1954 and 1961, during which an Insolvency Petition No. 10 of 1954 was filed by some other creditor of the judgment debtor giving a list of creditors including the present decree-holder was pending was liable to be excluded for computing the period of limitation, under section 14(2) of the Limitation Act, 1963, which reads as under :--- 14(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."

(3.) The finding of the learned Judge is challenged in the above first appeal, on the ground that the article of limitation applicable under Limitation Act, 1963, was Article 136, which provided the period of limitation of 12 years from the time the decree became enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place. In the present case there was no such dates given; and it was a simple money decree, passed as far back as, on October 24, 1953, and the Darkhast was barred by time, inasmuch as the decree-holder in the present case had no himself filed by insolvency petition, or taken any steps diligently or bona fide in those proceedings, and in fact he allowed the petition to be dismissed for want of prosecution by the creditor who had filed the petition on July 3, 1959, and he had not even joined or was made a party in the appeal filed by one other party, in Civil Appeal No. 4 of 1959. It was further submitted that it is settled law, according to the law of insolvency, in this country, that it is only under section 29, of the Provincial Insolvency Act, 1920, after the order or adjudication is made, that the period from the date of the order of adjudication to the date of the order of annulment, shall be excluded, as laid down in section 78(2); and hence, in the absence of any order of adjudication in this case, nothing prevented the decree-holder from applying for execution between 1954 and 1959, during the pendency of the insolvency proceedings.