B S LAIL Vs. SARDAR MAL LALWANI

JUDGEMENT

(1.) THIS appeal is directed against the decision of the Civil Judge Bhopal holding the plaintiff's suit as incompetent by reason of Section 47 C. P. Code and dismissing the same.

(2.) FACTS giving rise to the present appeal may be briefly stated as follows: a decree for Rs. 21,700/- was passed on the basis of an award on 13-31949 under the terms of which the aforesaid sum was payable by four equal instalments of Rs. 5,425/- each falling due on 1-8-1948, 1-111948, 1-3-1949 and 26-6-1949. The plaintiff in whose favour that decree was passed applied for its execution against the defendant on 167-1949. The defendant appeared in the execution proceedings and objected to the maintainabilly of the execution application on what according to him was the true interpretation of the award and the decree based on it. The objection did not find favour with the executing Court but was upheld by the learned Judicial Commissioner Bhopal by his decision dated 17-12-1953. It was held by him that the remedy of the plaintiff appellant was not by means of an execution application and that he ought to have filed a suit to enforce his right. The petition was accordingly dismissed. The defendant had paid certain amounts during the pendency or the aforesaid proceedings and the plaintiff had withdrawn them under the orders of the Court. The plaintiff now accepting the decision of the learned Judicial Commissioner brought the present suit for the recovery of the balance of his dues inclusive of interest and costs in all amounting to Rs. 5918-4-3.

(3.) THE defendant in para 13 of the written statement now raised the contention as to incompetency of the present suit though the grounds of incompetency were not stated. He also raised the contentions regarding limitation and the extent of the plaintiff's dues.