DEV KRISHNA Vs. DHANI RAM SALIGRAM

JUDGEMENT

(1.) IN this application for review of the judgment of the Single Judge in Civil Second appeal No. 129 of 1952, the question for decision is this: Has that Court committed a mistake apparent on the face of the record when it has described as a "notification", a particular order of the Durbar of the erstwhile Gwalior State on which the decree-holder-applicant relied as the means of saving limitation? certainly the question is not whether that notification was one properly so-called, or something more namely a statute which need not be proved, but should be judicially noticed, nor is it the question whether the Single Bench judgment is wrong in this regard.

(2.) THE facts arc simple. Long long ago the decree-holder obtained a money decree against the non-applicant which he put into execution well after the statutory period of limitation. When this was pointed out by the non-applicant judgmentdebtor the decree-holder argued that during this interval the Durbar had made and notified an order giving as it were a moratorium. After that order or notification spent itself he filed the application for execution, and was therefore, entitled to get the period excluded. It was, therefore a simple matter calling for the production of a copy of the said notification. The decree-holder having taken years failed to produce it, the executing court dismissed the application as time-barred. The decree-holder went up in appeal and the first appellate court remanded the execution case to enable the decree-holder to prove the notification on which he was apparently reiving. But even after the remand the decree-holder failed to prove it. The case was again dismissed and again taken up in first appeal. On this occasion in the first appellate court a copy of the notification seems to have been produced, and the court observed that it was taking judicial notice; then it restored the execution case as being in time.

(3.) THEREUPON the judgment-debtor came up in second appeal, and the single bench held, firstly, that the first appellate court had really taken further evidence and not judicial notice, as in fact, according to a Full Bench ruling of the Madhya bharat High Court no judicial notice could be taken of a notification. Secondly, it found that in the circumstances of the case there was altogether no justification for further evidence in the first appellate court; and thirdly, considering the case without this piece of further evidence it ordered that the execution case should be dismissed as time-barred.