RAMKUNWARBAI Vs. MOTIRAM PUNA GUJAR

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent by the legal representative of a decree-holder from the judgment of a single Bench, holding that their prayer to continue prosecuting the execution originally levied by their deceased predecessor -in interest was time-barred in terms of Article 181 of the old Limitation Act (Art. 137 of the new Act). The questions for decision are (1) whether the original execution No. 57 of 1932 before the District Judge was still pending when in 1960 the legal representatives sought leave to proceed with it; (2) whether in view of the new Madhya Pradesh Civil Courts Act "the Court which passed the decree", which as such could give leave to successors to con- tinue with the execution case, was that of the District Judge or the Civil Judge Class I, if any, at that station; (3) whether an application by the legal representatives to continue with the excution case is one covered by Order 21, rule 16, C.P.C.; (4) finally, whether the requirements for the legal representatives' prayer are already fulfilled by the vakalatnama filed and oral representation made on their behalf before the revenue Court some time in 1959 itself; (5) whether or not such a prayer comes under that rule it is at all a prayer made under the Civil Procedure Code for which the rule of limitation is contained in the old residuary Article 181 or whether there is no limitation at all.

(2.) A mere narration of the facts of this case will show that whatever the results of this Letters Patent Appeal it is undoubtedly a hard one brought about in part by the legal representatives' own indifference to the consequences of delay; and to some degree by the Courts keeping an execution case as it were in cold storage for nearly 27 years. Anyway, the law of limitation is hard; if it is found that the party benefited by the limitation has played any tricks or indulged in devices, we can in appropriate circumstances condone the delay. But that is not the position here; and the litigant, having gone to sleep because the Courts have been slow has still to take the consequences.

(3.) THE judgement-debtors took the position among other grounds that this leave application was one under Order 21, rule 16, C. P. C. this being the only provision in the Code under which the sussessors or the assignees of the decree- holder could at all continue with the execution. For this the limitation is provided in the residuary Article 181 (old) and as it had been exceeded and as there was no justification the prayer was time-barred. THEre were some other grounds raised by the judgment-debtors; but we are not concerned with them at this stage. THE reply of the legal representatives was, firstly, that there being no question of abatement there was also no question of limitation; within reasonable time it was open to the legal representatives to continue with the execution case the prayer being not under Order 21, rule 16, C. P. C. but one for exercise of inherent jurisdiction. THE executing Court having held that the prayer of the legal representatives was time-barred they came up in appeal and the single Bench having considered the entire matter held that it was a petition under Order 21, rule 16, C. P. C. with a three.year limitation; that being exceeded the execution had to be struck off as time-barred. THE single Bench was not prepared to accept that the measures taken on behalf of the legal representative before the revenue Court were sufficient for the purposes :of that rule. From this the legal representatives have come up under the Letters Patent. THEre was no need for a certificate as it was a decision by the single Bench in a first appeal. Question No. I. -