ONKARSINGH GULAB SINGH Vs. MEHARBANSINGH AHARSINGH

JUDGEMENT

(1.) THE only question that arises for consideration in this reference is whether an application made by a decree-holder for bringing on record the legal representatives of the deceased judgment-debtor is 'an application made in accordance with law to take a step-in-aid of execution of the decree' within the meaning of Article 182 (5) of the Limitation Act.

(2.) THE question arises under the following circumstance: the appellants (decree-holders) obtained a certificate from the Deputy commissioner, Hoshangabad, under Section 13 of the Debt Conciliation act. They registered it as a decree in the Court of Civil Judge, Class II, sohagpur, on 29-1-1953. This decree they sought to execute against the judgment-debtor Hemabai by an application for execution filed on 17-11953. This application was dismissed on 26-6-1953. They again applied for execution on 5-11-1955. In this application there was a prayer that as the judgment-debtor Hemabai was dead, her legal representative be brought on record and thereafter the application for execution be further proceeded with. In this application, though it purported to be in the form prescribed under Order XXI, Rule 11 of the Code of Civil Procedure, no particular mode in which execution was sought was stated in the column meant for the purpose. This application was dismissed as not pressed on 19-3-1956. A third application giving rise to these proceedings was then filed on 24-6-1958. It again was in the form prescribed for applications under Order XXI, Rule 11, and showed Hemabai as the judgment-debtor but in the column meant for mentioning the method by which execution was sought stated that the legal representative of the deceased judgment-debtor Hemabai be brought on record. On 29-7-1958, they also filed a substantive application for substitution of the legal representative of the deceased judgment-debtor Hemabai, supported by an affidavit, and therein stated that the respondent Meharban Singh was her heir in possession of her property and that he be brought on record in her place, notice was issued to Meharban Singh to show cause against the application. The respondent Meharban Singh appeared in response to the notice and contested the application contending, inter alia, that it was barred by time. The executing Court, by its order, dated 23-11-1959, dismissed the application holding that a mere application for substitution was not tenable, and inasmuch as the application, dated 24-6-1958, did not mention in what manner execution was to be levied, it could not be treated as an application for execution. It further held that as the earlier application, dated 5-11-1955, also suffered from a similar defect that was also untenable, with the result that the present application whether treated as an application for substitution or as an application for execution was barred by time. The Additional District Judge, Hoshangabad, confirmed this dismissal by his order, dated 27-8-1960. For holding that an application for substituting the legal representatives of a deceased judgment-debtor was not 'a step-in-aid of execution', the Courts below relied on certain observations of Shrivastava J. in hemchand v. Tekchand. 1959 MPC 380: 1959 MPLJ 733 at p. 734: (AIR 1959 MC 403 at p. 403 ). The decree-holders appealed and when the case came up before one of us e. g. Naik J. sitting singly, he in view of the tact that there were direct authorities supporting the contention of the appellants decree-holders that an application for bringing on record the legal representatives of the deceased judgment-debtor was a step-in-aid of execution within the meaning of Article 182 (5) of the Limitation act, which authorities, Shrivastava J. Considered to be impliedly overruled by the judgment of the Supreme Court in Jugalkishore v. Rao Cotton Co. Ltd. , (S) AIR 1955 SC 376, referred the case to Honourable the Chief Justice with a recommendation that the appeal be placed before an appropriate Bench which can resolve the difference and dispose of the case according to law. This appeal has accordingly been referred to this Full Bench for disposal.

(3.) IT has been the settled view of this Court following Varadaraja Mudali v. Murugesam Pilial, ILR 39 Mad 923 (AIR 1916 Mad 728 (2)) that the provisions of article 182 of the Limitation Act should receive a fair and liberal but not too technical a construction, so as to enable the decree-holder to obtain the fruits of his decree: (See Ramchandra v. Uka, 24 Nag LR 36 at p. 37: (AIR 1927 Nag 308 at p. 309) and Pilwasao v. Mst. Khairun-Nissa, 31 Nag LR 126: (AIR 1935 Nag 1) ).