C P SYNDICATE Vs. FIRM HASANALI ABDUL ALI

JUDGEMENT

(1.) THIS is a letters patent appeal of the C. P. Syndicate Ltd. , Nagpur, against the order of Mudholkar J. in Miscellaneous (First) Appeal No. 163 of 1949, confirming the order of the Additional District Judge, Chhindwara, in civil suit No. 3-B of 1934, by which its execution application was held to be barred by limitation.

(2.) THE C. P. Syndicate Ltd. , Nagpur obtained a consent money decree on 22nd july 1936 in the Court of the, First Additional District Judge, Nagpur, in civil suit no. 3-B of 1934, against Hasan Ali, Gulam Abbas and Abdul Kadar who are brothers. The decree was subsequently transferred for - execution to the Court of the Additional District Judge, Chhindwara. The decree-holder filed an application for execution of the decree on 5-4-1941, which was dismissed on 13th December, 1941. A fresh execution application was filed On the same date, namely, 13th december 1941. Hasan Ali made an objection to the execution alleging that on 18th July 1936 the decree-holder had entered into an agreement with him that the execution of the decree would be permanently stayed and he would pay the decretal amount on monthly instalments of Rs. 100/- commencing on the termination of two years from the date of the decree. This objection was dismissed on 25th July 1942. On 30th September 1942, Hasan Ali preferred an appeal to the high Court. Thereafter the execution application was dismissed on 25th September 1943. A fresh execution application was then filed on 5th May 1944, which was dismissed on 18th November 1944. The appeal to the High Court was thereafter dismissed on 5th December 1947. Afterwards, the decree-holder filed another execution application on 6th January 1948, This execution application was held to be barred by limitation by the Additional District Judge, Chhindwara, and his order was upheld in appeal by the learned Single Judge.

(3.) THE learned counsel for the decree-holder rested his case only upon Article 182 (5), Schedule I, of the Indian Limitation Act, 1908, which is reproduced below: cree or certified hereinafter order of copy of mentioned any Civil the decree has been court not has been made) the provided registered, date of the for by six years. final order article 183 passed on or Section an 48 of the application code of made in civil accordance procedure, with law to 1908. the proper court for execution, or to take some step in aid of execution of the decree or order. C. P. Syndicate Ltd. vs. Firm Hasanali Abdul Ali and Ors. (13. 02. 1959 -MPHC) Page 3 of 5 this provision requires- (1) that there must be an application to the proper Court for execution or to take some step in aid of execution of the decree or order; (2) that the said application must be made in accordance with law; and (3) that the order made thereon must be a final order. Explanation 2 defines 'proper Court' as meaning the Court whose duty it is to execute the decree or order.