ATINDRA LAL PAKRASI Vs. MONORANJAN CHOUDHURY

JUDGEMENT

(1.) The first respondent Monoranjan Choudhury obtained a final mortgage decree against the appellant and some other persons on the 18-6-1935. He made his first application for execution on the 13-3-1936; the second on the 15-2-1939; the third on the 15-5-1942; and the 4th on the 15-5-1945. It is not disputed that all these applications were within the time prescribed by the Limitation Act. Execution case No. 21 of 1945 which was started on his application made on the 15-5-1945, was, after various orders with which we are not concerned, adjourned on the 14-8-1947, to 29-8-1947, for orders. On the 29-8-1947, the following order was passed: "Notice under Section 34 of the B. A. D. Act is put up. Let further proceedings be stayed until further orders." On the 30-4-1951, this stay order was vacated and the case was struck off. An application praying for execution of the decree was made by the decree-holder on the 15-2-1954. The appellant objected to execution on the ground that it was barred by limitation. This has been rejected by the executing court and the appeal is directed against the order of rejection.

(2.) It has to be mentioned that the question of limitation was considered by the court below on the basis that the application of 1954 was a fresh application for execution. Admittedly if this be not in law a fresh application for execution but merely an application in a live execution case, no question of limitation would arise. We have therefore thought it proper to address ourselves to this question--was the application of the 15-5-1954 a fresh execution petition or was it an application in an existing execution case? It is settled law, and was pointed out by the Privy Council as recently as 1939 in Oudh Commercial Bank Ltd. v. Bind Basini Kuer 66 Ind App 84: (AIR 1939 PC 80) (A) that the question whether an application is a fresh application or merely ancillary or incidental to the continuation of a previous application has to be decided on the circumstances of each case and that the substance of the matter must prevail over the form. It is equally well settled that the mere passing of an order striking off an execution case does not necessarily terminate the case. In Govermonee Dossee v. Jogutindronarain 18 Suth WR 319(B), where the jurisdiction of the principal Sadar Amin to take steps in execution was challenged on the ground that an order "striking off'' the case had been passed earlier, the Privy Council held that the jurisdiction had not ceased as the "striking off" was only for the purpose of disposal of pending cases. (See also Monarth Das v. Ambika Kanta Bose 9 Cal LJ 443 (C) ).

(3.) The question therefore is whether in the circumstances of the present case the order striking off the case should be held to have terminated the proceedings. As already stated, the proceedings were started by an order dated the 29-8-1947. The next order we find is the order dated the 29-3-1951. It is in these words: