KHEM CHAND Vs. ROMESH CHAND

JUDGEMENT

(1.) The only contention which has been raised by the learned counsel for the appellant in this appeal is that the courts below have gravely erred in holding that the suit was barred by limitation.

(2.) A few facts relevant to decide this point may be stated. One Shri Charan Dass obtained a decree from the Court of Sub-Judge, Hoshiarpur against one Shri Sohnu. Sohnu died about six years before the filing of the suit and his widow Smt. Ralli succeeded him. Amin Chand another brother of Sohnu died about 3 years before the filing of the present suit. Amin Chand executed a will in favour of the plaintiff (who is the grand-nephew of Amin Chand) and got one-half share in the property in dispute. The defendants/respondents, who are the successors of Charan Dass decree-holder got the said property attached in execution of the decree. After the property was attached in execution of the said decree, objections were filed against the order of attachment, under O.21 R.58 C.P.C. by Amin Chand predecessor-in-interest of the appellant. The objection petition was, however, dismissed on June 20, 1959. After the objections under O.21, R.58 C.P.C. were dismissed, Amin Chand predecessor-in-interest of the appellant filed a suit on July 27, 1959 under O.21, R.63 C.P.C. for declaration that he had half share in the said property. Amin Chand died during the pendency of the suit and his successor Khem Chand appellant, withdrew the suit on July 23, 1960 with liberty to file a fresh one. The execution proceedings were, however, continuing. On May 31,1960, the respondents, who are successors of Charan Dass decree-holders, got the execution petition consigned to the record room. On the said petition, the following order was made by the Senior Sub-Judge, Hoshiarpur on Nov. 30, 1960 :

(3.) It may be pointed out that besides other properties, the property described as 'D' is only the subject matter of the dispute. After the first execution petition was dismissed, the decree-holder filed a fresh execution petition and got the property 'D' along with other properties reattached on May 25, 1962. On fresh attachment of the property 'D', the appellant/plaintiff filed a suit in the Court of Sub-Judge, Hoshiarpur which was ultimately decided by the Sub-Judge 1st Class, Una on Aug. 4,1969. The learned trial Court, however, dismissed the suit as barred by limitation. An appeal was preferred in the Court of the learned District Judge, Kangra at Dharamsala against the decree and judgment passed by the trial Court. The same was, however, dismissed by the learned Additional District Judge, Kangra on July 9, 1971 also holding that the suit was barred by limitation.