ASHALATA PANIGRAHIANI Vs. ANAND DAL BEHERA

JUDGEMENT

(1.) This appeal raises a short point of jurisdiction, The appellant is the decree- holder who obtained a decree for money against the respondent on 7-9-1937, and the last execution petition filed was E. P. No. 561 of 1948. The decree-holder attempted to have the movable properties of the judgment-debtor attached, but as the judgment-debtor bolted the door the warrant was returned unexecuted. The decree-holder then applied for the arrest of the Judgment-debtor who applied for time for payment but failed to pay anything towards the decretal dues. Ultimately a warrant of arrest was issued and the judgment-debtor was arrested. But this process also proved fruitless as the judgment-debtor was rescued forcibly by his relations and he escaped from the custody of the process-server. Thereafter, the decree-holder filed a petition under Sections 195 and 476, Criminal P. C., for prosecuting the judgment-debtor and this petition was registered as Misc. Case No. 62 of 1950 on 22-4-1950. On 22-9-1950 the learned Munsif held that the execution was dragging on unnecessarily and that no steps had been taken by the decree-holder to realise the decretal amount. Accordingly he dismissed the execution petition as infructuous and simultaneously also dismissed the Miscellaneous Case for prosecuting the judgment-debtor. Thereafter the decree-holder filed a petition for revival of the Execution Petition, under Section 151, Civil P. C., and other provisions of that Code. The learned Munsif restored the Execution Petition on 8-12-1950 and allowed the petition filed by the decree-holder for prosecuting the Judgment-debtor in Misc. Case No. 62 of 1950. Against this order the judgment-debtor went up in appeal before the District Judge, and the learned District Judge was of opinion that the order passed by the Munsif restoring the Execution Petition to file was one under Section 47, Civil P. C.; and accordingly held that he had Jurisdiction to entertain the appeal. The learned District Judge accordingly set aside the order of the Munsif on the ground that there were no valid grounds for restoring the dismissed Execution Petition. It is against this order of the District Judge that the present miscellaneous appeal has been filed by the decree-holder.

(2.) The only ground taken by learned counsel for the appellant is that the order passed by the learned Munsif was one under Section 151, Civil P. C., and did not relate to the execution of the decree. Any order passed in an execution proceeding which is merely incidental to the execution of the decree itself is one under Section 151, Civil P. C. and not one under Section 47, Civil P. C. Our attention was invited to the decision of the Supreme Court reported in -- 'Keshardeo v. Radha Kissen', AIR 1953 SC 23 (A) in support of this proposition. We would accordingly hold that the learned District Judge had no Jurisdiction to entertain the appeal, and would set aside his order. The order passed by the learned Munsif is restored. He will now proceed with the Execution Petition No. 561 of 1948 which must be regarded as still pending. Miscellaneous Case No. 62 of 1950, which was dismissed by the learned District Judge on the ground that it was no longer tenable when the Execution Petition itself was dismissed, is also restored to file. It was open to the District Judge to proceed with this case, independently of the order passed on the main Execution Petition, and we see no reason why it should not have been restored. We would accordingly restore Misc. Case No. 62 of 1950 to file and direct the learned Munsif to hold an enquiry and dispose it of according to law.

(3.) The decree-holder (appellant) has also filed a petition under Section 48, Civil P. C., and prays for a further extension of the 12 year period of limitation for proceeding with the execution of the decree. The judgment-debtor has filed a counter denying the allegations made by the decree-holder. We are not, however, inclined to go into this matter at this stage as it involves determination of questions of fact. We would, therefore, leave the matter open and direct that this petition also may be enquired into by the lower Court as and when the need for an application under Section 48, Civil P. C. will actually arise. In the result the appeal succeeds and is allowed with costs.