INDIRABAI Vs. ANOKHCHAND

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings and involves the question as to limitation. The executing Court before whom the question of limitation was raised by the judgment debtors overruled the same and held the petition not barred. On appeal the appellate Court came to contrary conclusion on the ground that the first execution petition, after the final decree, was not filed within three years in accordance with law. The execution petition was held to be incompetent. The appeal was accordingly allowed and the execution petition was dismissed. This appeal is directed against that decision.

(2.) MATERIAL facts necessary for consideration of the present appeal are as follows :

(3.) PRESENT execution -petition No. 524/1951 is now filed on 28 -11 -1951. On notice to the judgment debtors they raised objections including that regarding limitation with reference to both the above mentioned execution applications No. 121 of 1945 and Execution Case No. 192 of 1948 The executing Court overruled these objections and held that the claim of the decree -holders was not barred by limitation, The reason suggested by it for taking this view was that the first execution application No. 121/1945 though imperfect to begin with had been permitted to be put in a corrected form and had consequently become one in accordance with law. As regards the second execution petition No. 192/1948 the executing Court was of the view that the defects therein though not removed by correction until it had been dismissed were not material so as to render it not one in accordance with law. At any rate it was held that the said application constituted sufficient step -in -aid of execution to keep the right to execute the decree alive. The last execution application No. 524 of 1951 was consequently held to be not barred. Reliance was placed by the execution Court upon the decision reported in Sadaya Chandra Vs. Pares Nath AIR 1922 Cal. 44 = 64 Indian Cases 571.