DAULAT RAO Vs. SHAFI ABMAD

JUDGEMENT

(1.) THIS is a miscellaneous appeal filed by the decree -holder from the order of the executing Court dismissing his prayer under Order 21, Rule 95, C.P.C., dated 19 -12 -1963 as time barred under section 48, C.P.C. According to that Court the earlier proceedings for the same purpose had been "closed" by the order dated 28 -10 -1963 and this was a new application in execution. The questions for decision are, primarily, whether the order dated 28 -10 -1963 was really one dismissing the execution application No. 77 of 1959 or was only an order of abeyance pending the proceedings in the High Court which had passed an order restraining the decree -holder from proceeding with the execution till its disposal of two appeals before it; secondly, whether the subsequent petition by the decree -holder dated 31 -7 -1964 was really one for amendment and if it was, whether it was rejected properly. Besides these there is a preliminary question posed by the respondent that no appeal lies from the order dismissing the application of 18 -12 -1963.

(2.) STATED thus the problem is not difficult or complicated; but the instant case is yet another illustration of the considerable harassment and delays suffered by litigants, especially decree -holders and auction -purchasers trying to realise the legitimate fruits of their success, by the use of loose language by the Courts and the covering up of simple problems with a quantity of unnecessary arguments and veribiage,

(3.) ON 19 -12 -1963 the decree -holder prayed again that he might be put into possession of those portions of the house over which be had not yet been put into possession. The executing Court treated it as a fresh application and after hearing the parties rejected it as being time -barred, the effect of that order being that in spite of the dismissal of the suits brought by the objector -respondents the decree -holder to whom the entire house had been sold could not get possession of these portions. The applicant suggested in course of this proceeding that he was amending the application to the effect that he was only reviving the Miscellaneous Case No.77 of 1959. That was also rejected on the ground that it was "mala fide device to deprive the opposite party of the advantage it had gained by the operations of limitation." The decree -holder purchaser has come up in appeal from the order of dismissal of the application.