BRIJLAL Vs. DULICHAND

JUDGEMENT

(1.) THIS is an appeal by the judgment-debtor against the order, dated 18-2-1970, passed by the District Judge, Damoh in Misc. Civil Appeal no. 22 of 1969, affirming the order, dated 9-7-1969, passed by the Second Civil judge, Class II, Damoh in execution of the decree passed in Civil Suit No. 18-B of 1955, as affirmed by the High Court in Second Appeal No. 47 of 1958.

(2.) THE decree of the High Court in Second Appeal No. 47 of 1958 was passed on 6-11-1959. The respondent decree-holder did not file an execution application within 3 years of the passing of the decree as required by Article 182, column 3, item 1 of the Indian Limitation Act, 1908 i. e. from the date of the decree. However, in the meantime, the judgment-debtor appellant filed an application on 23-12-1959 for grant of instalments under Order 20, rule 11, Civil Procedure Code. That application was registered as Misc. Judicial Case No. 1 of 1960 and by order, dated 23-3-1963, the Court of first instance rejected that application. Against that order of the trial Judge, the judgment-debtor filed an appeal in the Court of Additional District Judge, damoh which was registered as Misc. Civil Appeal No. 3 of 1963. By an order, dated 21-10-1963, the learned Additional District Judge granted instalments to the judgment-debtor by making the decretal amount payable in two instalments of Rs. 1,000 each on 15-7-1964 and 15-7-1965. In the event of a single default the entire decree was to become exigible.

(3.) AS the first instalment due on 15-7-1964 was defaulted, the respondent filed an execution application on 10-11-1964. In reply to that application the appellant raised two objections. One was that the earlier execution having already become barred by time, the present execution application was not tenable. It is pertinent to note that the respondent had earlier filed an execution application on 8-4-1963 which was ultimately dismissed by order, dated 30-11-1963 on the ground that it was infructuous. The second objection of the judgment-debtor appellant was that the decree-holder himself had stated that he had assigned the present decree in favour of the defence fund and that the defence Department through Bal Vidyalaya, Mahar Sainik Kendra, Sagar was the donee of the decree. Therefore according to the appellant, the respondent decree-holder could not continue the execution. Both these contentions were negatived by the learned Judges of the Courts below. Hence this appeal by the judgment-debtor.