MUNICIPAL COMMITTEE UJJAIN Vs. RAM SHANKER

JUDGEMENT

(1.) THIS is an appeal directed against the judgment and decree of the Additional District Judge, Ujjain, by which he held, that the execution of a decree by the decree -holder is barred by the provisions of Section 48 Code of Civil Procedure as the application for execution was made more than 12 years after the date of the original decree passed on 6 -10 -1928.

(2.) IF the decree -holder had sought for execution of the decree of 1928 there is no question that an application would have been barred by limitation. But it appears in this case that in the execution of the original decree, in which there were more than one execution proceedings, at one such proceeding, the parties came to terms and in execution case No. 468 of 1991 a compromise was entered into by the parties and certified by the Court on 16 -2 -1938 and the judgment -debtor promised to satisfy the remaining claim by instalments. It was agreed that in default of payment of instalments on specified date the decree -holder would be entitled to realise entire sum by execution. When the execution application No. 264 of 1998 was filed the judgment -debtor objected that the decree was incapable of execution by the 12 years rule. This objection was overruled and the appeal was also dismissed on 22nd Dec. 1943. Then another execution application was filed on 25 -7 -1946 and it was mentioned that it was for the revival of the execution case No. 264 of 1998 and the judgment -debtor again raised the same objection.

(3.) SUBSEQUENT to this ruling several Courts have held that once the Court accepts the compromise and passes an order striking off the execution proceedings the Court intends that the decretal amount should be payable by instalments and the order which it passes striking off the execution proceedings is in essence and substance an order made under Section 48 of the Code of Civil Procedure which extends the period of limitation. So there is a conflict of opinion on the point.