DAULAT RAM Vs. BABOO RAM

JUDGEMENT

(1.) THE facts giving rise to this Second appeal may be shortly skated. A decree for Rs. 809 with costs was passed in favour of the decree -holder on 10 -2 -1985. During the execution proceedings, 43 bighas and 5 biswas of land belonging to the judgment -debtor was ordered to be mortgaged to the decree -holder in (sic) of the decretal amount. The Khasra, numbers of the land were also mentioned in the order. Later on, the judgment -debtor objected that since he was an agriculturist and some land had to be left for his maintenance, the order of 23 -3 - 1991 whereby his entire land had been given on mortgage to the decree -holder was illegal.

(2.) ON 28 -1 -2000, a fresh mutation was sanctioned whereby the mortgage in favour of the decree -holder was redeemed. The present application was made by the decree -holder on 27 -6 -2000. It was merely to the effect that since a mutation relating to the redemption of the mortgage had been made and the order by virtue of which he was given land did not specify the khasra numbers this omission be made good, the numbers which were to be given to him on mortgage should be specified, and he should be put in possession of that land. The application was opposed by the judgment -debtor on various grounds. The executing Court treating the application as one under Section 152, Code of Civil Procedure corrected its original order by specifying the khasra numbers of the land which was to be given to the decree -holder on mortgage in lieu of the decretal amount and also ordered the possession of the land to be awarded to the decree -holder. On appeal the District Judge set aside the executing Court's order. His view was that the application fell within the purview of Section 47, but since it was barred by time no action could be taken thereon. The decree -holder is the Appellant before me.

(3.) EVEN if I ignore this technical objection to the application of the decree -holder there is another difficulty in his way. Mr. Atma Ram maintained that his application is under Section 47, Code of Civil Procedure. In my opinion, the contention is without force, because the contents of the application as well as the relief which is claimed therein bring the application within the scope of Section 152, Code of Civil Procedure, rather than of Section 47. But even if I agree with Mr. Atma Ram and treat the application as one for the execution of the decree, the question is whether it is within time. Mr. Atma Ram contends that the terminus a quo for the application was the time when his client was dispossessed of the land but it is significant that no mention of that time is made in the application itself and there is no evidence on record from which it can be found when the decree -holder was actually dispossessed. In addition I do not think that even if the decree, holder was dispossessed within 3 years of the date of the application, this would make the application within time, because if it is an application for execution and comes within the scope of Section 47, so far as limitation is concerned it is governed by Article 181, Limitation Act, and it can be held to be within time only if it is shown to be within 3 years of the last step -in -aid of execution. On this point, Mr. Atma Ram has not been able to convince me and I hold that if the application is really under Section 47, it is barred by limitation.