SARABAI AGARWALLA Vs. HARADHAN MOHAPATRA

JUDGEMENT

(1.) This is an application of some of the heirs of the decree-holder auction- purchaser challenging the reversing appellate decision of the learned Additional District Judge of Sambalpur holding that their application for being put into possession was barred by limitation.

(2.) One Mathura Prasad Agarwalla, husband of the petitioner No. 1 and father of the remaining petitioners as also of opposite party No. 2 filed a money suit against opposite party No. 1. The said suit was decreed on compromise. Execution Case No. 98 of 1968 was levied by the decree-holder for realisation of the decretal dues as opposite party No. 1 failed to satisfy the decree in terms of the compromise. In the execution case attachment and sale of certain lands were prayed for and ultimately the attached lands were sold for satisfaction of the decree and the decree-holder purchased the lands at the auction. Sale was confirmed on 24-7-1971 and the sale certificate was signed and issued to the auction purchaser in due course. The decree-holder applied for delivery of possession and the executing Court directed possession to be delivered and the writ for delivery of possession was issued and the execution case was posted to 26-11-1971 for return. The writ was received back on 17-12-1971 after due execution on 21-11-1971, but Mathura Prasad was already dead on 5-11-1971. Judgment-debtor objected to such delivery of possession taken through the power-of-attorney holder as the principal was dead and the authority to act on behalf of the decree-holder had lapsed. The executing Court accepted the objection by order dated 21-2-1972 and ordered that the legal representatives of the decree-holder-auction-purchaser may come up with the prayer for fresh delivery of possession. Thereupon the heirs applied on 23-12-1975 for substitution and substitution being allowed they filed an application for issue of writ of delivery of possession. The move of the legal heirs was objected to by the judgment-debtor on the ground that the application had been barred by limitation. The executing Court upon hearing parties by order dated 2-11-1978 overruled the objection and directed issue of fresh writ of delivery of possession in favour of the legal heirs. Against the said decision, an appeal was carried to the Additional District Judge at Sambalpur in Miscellaneous Appeal No. 43 of 1978 and the learned appellate Judge reversed the decision of the executing Court and held that the application was barred by time and accordingly no writ for delivery of possession could be issued. This reversing order of the appellate Court is assailed in the present revision application.

(3.) The main submission of counsel for the petitioners is that the order of the executing Court was not amenable to an appeal and the Additional District Judge had no jurisdiction to reverse the order of the executing Court. There is no dispute before me that the order made by the executing Court was one within the ambit of Section 47 of the Civil P. C. The order of the executing Court was passed on 2-11-1978, long after the Civil P. C. of 1908 underwent amendment by Central Act 104 of 1976. By the amending Act, the definition of "decree" in Section 2 (2) underwent an amendment and reference to Section 47 therein was omitted. Section 97 of the amending Act making provision for repeal and saving provided, as far as relevant :-