HARIT KRISHNA DEB Vs. ANIL KRISHNA DEB

JUDGEMENT

(1.) THIS appeal by the decree -holder arises out of an order under Section 47, Civil P. C. by which his application for execution has been dismissed as barred by limitation. The facts material for the purposes of the present appeal are as follows :

(2.) ON 15th September 1936, the appellant obtained a decree in an administration suit and he put that decree into execution on 15th September 1939 in Title Execution Case No. 71 of 1939. The judgment -debtor filed an objection under Section 47 raising the question of the maintainability of the execution and this objection gave rise to Miscellaneous Case No. 54 of 1940. This case was dismissed by the executing Court by an order dated 17th June 1940. Thereafter the judgment -debtor intimated to the Court that he proposed to file an appeal to this Court against the order of dismissal and prayed for stay of execution. This prayer was granted for a limited period but eventually the executing Court wanted to proceed with the execution as no order for stay of execution had been received from the High Court. The decree -holder was called upon to take steps which he did not do with the result that execution case No. 71 of 1939 was dismissed for non -prosecution on 31st August 1940.

(3.) ON 18th August 1945, the decree -holder started the present execution case which was registered as Title Execution Case No. 22 of 1945. The judgment -debtor filed an objection under Section 47, Civil P. C. on the ground that this execution case having been filed more than three years from the dismissal of the first execution case on 31st August 1940, it was barred by limitation. The decree -holder maintained that the starting point of limitation was not 31st August 1940, but 2nd December 1943, when the first execution case was finally dismissed after the decision of the High Court in F. M. A. 307 of 1940. The learned Subordinate Judge has upheld the contention of the judgment -debtor and dismissed the execution case as barred by limitation. In dismissing the application for execution the learned Subordinate Judge has found that the starting point of limitation is 31st August 1940, and not 2nd December 1943, and that all the proceedings taken by the executing Court after the return of the record on the decision of F. M. A. 307 of 1940 were without jurisdiction.