GANPAT Vs. GENDALAL

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings. Brief facts necessary for consideration of this appeal are as follows. On 10 -3 -1913 the plaintiff decree -holder obtained a decree for money. This decree was put into execution from time to time till 17 -4 -194l when in the course of the execution petitions then pending there was a compromise under which Rs. 2300/ - be came payable by annual instalments of Rs 50/ - There was also a default clause providing for the recovery of the entire balance in case even a single instalment remained unpaid. A default did occur and Execution Case No. 26 of Samvat Year 1999 was filed on 3 -8 -1942. This was transferred to the Subha for execution as the decree -holder wanted the agricultural land of the judgment -debtors, in which they had Zamindari interest, to be sold. While the execution case was pending in the Court of the Subha the Madhya Bharat Zamindari Abolition Act came into force. Thereupon the Subha returned the decree to the Court which had directed its transfer for execution. This petition No. 26 of Samvat Year 1999 was renumbered as No.6 of 1952. The decree -holder now applied for attachment of the compensation amount. The executing Court thereupon on 26 -2 -1952 directed the attachment of the compensation money as and when the same would be payable to the judement -debtors by writing to the Compensation Officer Ujjain to that effect. Reply of this was received from the Subhayat, Ujjain, by their letter dated 13 -5 -1952 intimating to the executing Court that the work of attachment had not commenced till then and the Tahsildar had been informed to bear this in mind when the compensation amount would be distributed. A second reminder was sent by the executing Court by its letter dated 18 -11 -1962. Reply of this was received from the compensation Officer Ujjain dated 25 -11 -1952 again intimating the same thing as before, When on 9 -1 -1953 the case came up for hearing the Court directed the decree -holder to produce Dakhala from the Compensation Officer as to what steps were being taken and the case was fixed for hearing on 27 -3 -1953. As no Dakhala was produced the execution case was dismissed on 27 -3 -1953. On 27 -12 -1955 the decree -holder submitted a fresh application for execution stating that the compensation of Zamindari eight annas share of the judgment -debtors had been attached in prior execution petition and the same had remained attached and requesting that the Deputy Compensation Officer might be asked to send the amount to the executing Court. Notice of this application was sent to the Judgment -debtors who raised the contention that the executing petition is barred by limitation under section 48 C. P. C. as this was a fresh execution petition and not a continuation of the execution case No.6 of 1952 (No. 26 of Samvat Year 1999), on behalf of the decree -holder it was contended that as there was a compromise reached between the parties in the Subhayat Court section 43 (1) (b) was applicable and the order of the Subha recording the compromise should be treated as subsequent order and 12 years should be reckoned from the date of payment fixed in the compromise. On behalf of the judgment -debtors it was contended that the Collector or the Subha to whom an execution is transferred for sale of land is not a Court and reliance is sought to be placed upon the decision of the Nagpur High Court reported in Raghoji Vs. Vithoba, 21 MPLC 220 = AIR 1939 = Nagpur 217, Second ground put forward by the decree - holder was that the execution petition dated 27 -12 -1955 was not a fresh petition hut was merely a continuation of the earlier petition No.6 of 1952 which had been relegated to the rcord room merely for statistical purposes. The judgment -debtors contended that it was a fresh petition.

(2.) THE executing Court upheld the contentious of the decree -holder and directed the execution to proceed.

(3.) AS regards the second ground however it held that the execution petition dated 27 -12 -1955 was a fresh petition and since in the execution petition No. 26 of Samvat Year 1999 No.6 of 1952 the decree -holder had exercised his option in taking the benefit of exigibility clause the petition of 1955 which was filed 13 years after the earlier execution petition was barred by the 12 years Rule. The petition was accordingly held to be incompetent. The appeal was therefore allowed and the execution petition was dismissed.