SAITH CHANDMAL DADDHA Vs. RAJA PRATAPGIRJI CHELA NARSINGH

JUDGEMENT

(1.) THIS is an appeal in execution on behalf of the judgment - debtor, since deceased and now represented by Narpath Singh, and it is directed against the order dated 21 -3 -1951 of Siadat Ali Khan J. on the Original Side of the erstwhile High Court of Judicature at Hyderabad holding the application preferred by the decree -holder Raja Pratapgir, the respondent herein, on 26 -9 -1950 was not barred by limitation since it was not a fresh application for execution but an application to 'revive the proceeding, which was consigned to the record room on 29th Meher 1348F.

(2.) THE facts lie in a short compass and may be briefly stated. Raja Pratabgir obtained a decree on 23rd Azur 1341 P. for Rs. 1,10,726/ - on the basis of an award. The decree to the extent of Rs. 80,000/ -was transferred to the Sadar Adalut, Medak for execution and for the balance was put in execution in the Court, which passed the decree. The proceeding in the latter Court came up before Khaleluzzaman J. on 29th Meher 1348 F On that date the following order was passed.

(3.) SHRI Deshmukh strenuously contended before us that the order of consignment to the record room passed on 29th Meher, 1348 F. must be judged in the context of the circumstances attending it. Those circumstances he pointed out were that the 'take View' had been sold and the proceeds thereof wholly went in satisfaction of Lutufuddowla's decree. No other property of the judgment -debtor was left to be attached and sold in execution of the respondent's decree. Therefore, the order aforementioned must be deemed to be an order of dismissal of the execution petition. To dispose of this contention, it must be borne in mind that CI. (5) of Art. 160, Hyderabad Limitation Act was different from CI. (5) of Art. 182 of the Indian Limitation Act. According to the latter, the period of three years commenced from the date of the final order on an application made in accordance with law to the proper court for execution or to take some step -in -aid of execution, while under CI. (5) of art. 160 of the former Act, the period of three years ran from the date of dismissal of the previous application for execution. Now if the order of 29th Meher 1348F., is read again, two circumstances stand out, firstly, the presiding Judge was not prepared to proceed with the application because he had once been the vakil of the respondent and secondly, the respondent desired the proceeding to be consigned to the record room.