HIRA SINGH Vs. GURDIP SINGH

JUDGEMENT

(1.) This appeal by the judgment-debtor is directed against an order of Subordinate Judge 1st Class, Amritsar, in execution of a decree.

(2.) The decree that was put to execution was for possession of a house with costs passed on 27th April, 1950. On 8th July, 1952, after an appeal against the said decree was dismissed the decree-holder lodged the first application for execution. Warrants of possession were directed. The judgment-debtor obtained stay of the execution proceedings in a suit, for declaration challenging the decree, subject-matter of execution. The execution as regards possession was stayed but as regards costs it remained active. Subsequently, however, on 18th June, 1953, the entire execution both relating to possession of the house as well as regarding costs was stayed by an order of injunction obtained in the civil Court. As a result thereof execution was consigned to the record room. The declaratory suit finally got dimissed and the appeal against the order of dismissal in that suit remained unsuccessful and was dismissed on 25th August, 1953. It was after the dismissal of that appeal that on 27th August, 1956, the decree-holder put in the present execution application. The same, however, got returned for incorporating some amendments. The amended application was presented to the executing Court on 31st October, 1957. The judgment-debtor, present appellant, objected to the application alleging that the same was time barred. The executing Court, while dismissing the objection of judgment-debtor, held that the execution application dated the 27th August, 1956, was merely a revival or continuance of the first execution application dated the 8th July, 1952, and therefore, could not be considered as time barred. On the other point, namely that the application filed after amendment was delated, the executing Court found that mere omission to state the number of the suit did not vitiate the application nor did it affect the question of time in any respect, particularly because the order returning the application for amendment was not a final order. The amended petition was otherwise held to have constituted a step-in-aid of execution and accordingly sufficient to save the limitation.

(3.) The challenge of the learned counsel, Mr. I.S. Karewal appearing for the judgment-debtor, was that the application filed by the decree-holder for execution of the decree on 27th August, 1956, could in no event be considered revival or continuance of his previous application dated the 8th July, 1952. The learned counsel, however, was not able to support his contention by any authority. On the other hand, there is any amount of case-law to show that, in the circumstances as in the instant case, merely consigning the execution application to the record room did not amount to cessation of execution proceedings. In fact, it has been held that it is Court's duty to revive the proceedings immediately after impediments, e.g., stay etc. have been removed. An application after proceedings occasioning stay etc. have terminated is merely a reminder to the Court for continuing the execution on the basis of the original application since consigned to the record room. Question of limitation thus in such circumstances has often been held not to arise. In support of this proposition Rama Kant Malaviya and another v. Satya Narain Malaviya, 1938 AIR(All) 552 and Pandurang Dewaji and others v. Rameshwar Motiram, 1948 AIR(Nag) 284 could be perused with advantage. In view of the conclusion that execution application dated the 27th August, 1956, was merely a reminder to revive or continue the previous application for execution, its having been refiled after amendments could hardly raise any question of limitation. Apart from the consideration that such an application clearly was step-in-aid as already held vide Thirupathi Ayyangar v. Yegnammal, 1933 AIR(Mad) 568 the same could not suffer for being belated because it would again have to be termed as a mere reminder to the Court to proceed with the execution which already had been pending disposal.