ANANDILAL Vs. RAM NARAIN

JUDGEMENT

(1.) THIS appeal, which arises out of execution proceedings for the realisation of money, involves mainly the question as to the applicability of section 15 (1) of the Limitation Act for saving the execution petition from being barred by limitation. The Court below has applied that provision and held the execution petition as not barred under section 48, C. P. Code by the 12 years Rule. THIS appeal is preferred by the unsuccessful judgment-debtors and two questions are mainly raised namely-

(2.) AT the hearing question No. 2 alone was pressed and it was frankly conceded that where an appeal is entertained and an order for stay is passed the mere fact that it is later dismissed as incompetent will not have the effect of there being no order for stay at all and the decree-holder will be incompetent to flout the order for stay passed in a judicial proceeding against him. It was accepted that an order for stay could properly be passed even before considering the question regarding the tenability of the proceedings which are appellate in character.

(3.) IN Sitaram v. Chunnilalsa(1944 NLJ 127=AIR 1944 Nag. 155=ILR 1944 Nag 250) it is held by Grille C J. and Sen J., that provisions of section 15 of the Limitation Act can be invoked in computing the period of limitation under section 48, C. P. Code. It is further held in that case that where the order staying execution is not restricted as regards a particular judgment-debtor or in respect of the money recoverable under the decree but is in respect of the decree and prevents the decree-holder from executing the decree against the other judgment-debtors also it was an order for stay within the meaning of section 15. The decision in Nathuni Prasad v. Firm Radha Kishan(AIR 1940 Pat. 149), which held that where the application for execution as against the judgment debtors was stayed during his insolvency proceedings, but the decree-holder was free to execute the decree against others, the decree-holder could not claim the benefit of section 15 of the Limitation Act, was distinguished in that case on the construction which their Lordships put to the order for stay in that case.