DARSAN DAS Vs. GANESH PRASAD SINHA

JUDGEMENT

(1.) This appeal is brought on behalf of the decree-holder against the order of the District Judge of Muzaffarpur, dated the 29th March, 1957, bv which he set aside the order of the Special Execution Munsif, dated the 26th April, 1956, in Miscellaneous Case No. 68 of 1956 in the proceedings for execution of a mortgage decree. It appears that the appellant obtained a preliminary decree in Mortgage Suit No. 46 of 1947 on the 3rd February, 1948. A final decree was passed on the 18th March, 1949. An application for the execution of the final decree was made on the 1st August, 1949. This execution case was numbered as 1299/399 of 1949. In the course of the execution proceedings the mortgaged properties were sold on the 22nd March, 1951, and purchased by a third party auction-purchaser for a sum of Rs. 1500/-. The sale was confirmed on the 27th March, 1951, and thereafter the decree-holder withdrew the purchase money in satisfaction of the decree. Later on the judgment-debtor filed an application under Order 21, Rule 90. Code of Civil Procedure, for setting aside the sale of the mortgaged properties. The application was dismissed by the executing court on the 29th September, 1951, but the order was set aside in appeal on the 17th May, 1952, and the order of the appellate court was that the execution sale should be set aside under the provisions of Order 21, Rule 90, Code of Civil Procedure. On the 2nd June, 1952, the executing court directed the decree-holder to take further steps in the execution case. On the 11th June, 1952, the execution case was dismissed for default because the decree-holder took no further steps. On the 18th May, 1955, there was an application by the auction-purchaser for refund of the auction money. On the 2nd December, 1955, there was an order made by the court calling upon the decree-holder to refund the auction money. It appears that on the 3rd December, 1955, there was a petition made by the decree-holder for issuing a fresh sale proclamation. This application was dismissed for default on the 19th December, 1955. On the 12th January, 1956, however, the decree-holder made an application for restoring the execution case which had been dismissed for default on the llth June, 1952, On the same date the executing Court allowed the application and restored the execution case, but the order was defective because no notice was issued to the judgment-debtor. On the 17th March, 1956, the judgment-debtor filed a petition for recalling the order of restoration made by the executing court on the 12th January, 1956. This petition was registered as Miscellaneous Case No. 68 of 1956 and was dismissed on the 26th April, 1956. There was an appeal by the judgment-debtor and on the 29th March, 1957, the District Judge of Muzaftarpur allowed the appeal and the result was that the application of the judgment-debtor was allowed and the application of the decree-holder for restoring the execution stood dismissed. Against this order the decree-holder has presented this second appeal in the High Court.

(2.) On behalf of the respondent judgment-debtor it was submitted by learned Counsel that the order of the executing court dated the 12th January, 1956. restoring the original execution case was bad and it was properly set aside by the lower appellate Court because no notice was given to the judgment-debtor. This argument on behalf of the respondent-judgment-debtor is, in our opinion, correct. But there is no point in sending the case back to the executing court for hearing the judgment-debtor and again giving a decision on the merits of restoring the execution case. The reason is that both the parties had been heard in the lower appellate court and they have also appeared before us, and it is open to us in second appeal to go into the merits of the case and ascertain whether the order of restoration made in the execution case on the 12th January, 1956, was a proper order in the circumstances of this case. The crucial point in this case is whether the application for restoring the execution case made on the 12th January, 1956, is barred by limitation. If the application was not barred by limitation, the order of the executing court is undoubtedly a proper order which is justified in the circumstances of this case. The contention put forward by learned Counsel on behalf of the appellant is that the case is governed by the provisions of Article 181 of the limitation Act and the application made on the 12th January, 1956, should not be treated as a fresh application for execution, but it was in substance an application for reviving the old execution case. On behalf of the respondents the opposite viewpoint is put forward, namely, that the case is barred by limitation even if Article 181 of the Limitation Act applied, because the starting point of limitation was not the order made on the 2nd December, 1955, for the refund of the purchase money, but the starting point of limitation was the order of the appellate court dated the 17th May, 1952; setting aside the execution sale under the provisions of Order 21, Rule 90, Code of Civil Procedure. In our opinion, the present case is governed by the provisions of Article 181 of the Limitation Act and the starting point of limitation is the date oi the order of the executing court by which the decree-holder was required to refund the sale proceeds. The date of the order of refund is the 2nd, December, 1955, and the application for restoring the execution case was made by the appellant on the 12th. January, 1956, which was well within the period of limitation prescribed by Article 181, of the Limitation Act. On behalf of the respondents reliance was placed upon a recent decision of this Court in Chulhai Naik v. Bharath Marain, 1958 BLJR 393: (AIR 1958 Pat 542) where it was held that the starting point of limitation is the date of the order setting. aside the sale. But the principle of that decision has no application to the present case, because the auction-purchaser in that case was the decree-holder himself and no question arose in that case of an order for refund of the purchase money made upon the decree-holder. On behalf ot the respondents reference was also made by learned Counsel to Akshoy Kumar v. Abdul Kader Khan, AIR 1930 Cal 329. In that case also no question arose as to the date of the order of refund of the purchase money and the point at issue in the present case did not really arise in the Calcutta case. In our opinion the present case is governed by the principle laid down by the Madras High Court in Ramineedi Venkata Appa Rao v. Lakkoju China Ayyanna, ILR 30 Mad 209. In that case a sale in execution of the decree was set aside at the instance of the judgment-debtor, and the decree-holder was ordered to refund the purchase money paid to him. The decree-holder subsequently applied to execute his decree and it was held by the Madras High Court that the application of the decree-holder was governed by Article 178 of the old Limitation Act, which corresponds to Article 181 of the present Limitation Act, and the time began to run against the decree-holder from the date when he was ordered to refund the purchase money, when alone his right to apply accrued. At page 211 the learned Judges have stated the legal position as follows:

(3.) It was also contended on behalf of the respondents that Article 182 of the Limitation Act was applicable and not Article 181, and in support of this argument referred to Prafulla Nalini Dassi v. Nrisingha Kumari Dassi, AIR 1942 Cal 255. But the principle of that decision is not applicable to the present case, because the Calcutta Case came directly within the wording of Article 182, Clause (6) of the Limitation Act, which provides for execution of a decree in respect of any amount which was recovered by the decree-holder by the execution of his decree, but which he was directed to refund. The period of three years mentioned in column 2 of the Article is to begin in such cases from the date when the final decree is made in the suit for refund. In the present case, however, the material facts are obviously different and the principle of the Calcutta case cannot be applied.