SARDAR GURU DAYAL SINGH Vs. RAMCHANDRA KUSHIARI

JUDGEMENT

(1.) THIS appeal by the sole appellant who was decree-holder in the executing court, is directed against the order of learned Subordinate Judge, dated 20-5-67 passed in Miscellaneous Case No. 1004 of 1966, holding that the execution levied by the appellant in Execution Case No. 59 of 1966 was barred under the provisions of Article 182 of the Indian Limitation Act, 1908 (hereinafter to be referred to as 'the Act'). The respondents were the judgment-debtors in the said execution case.

(2.) IN order to appreciate the points for decision in this appeal, it will be necessary to set out the facts in brief. The appellant instituted Misc. Case No. 20 of 1950 in the court of Subordinate Judge, Hazaribagh for appointment of arbitrator for examining the accounts of the partnership business maintained by Mahendra Lal Kushiari, for recovery and deciding disputes between the parties and for valuing the effects, and goodwill of the partnership business to enable the appellant to purchase the interest of Mahendra Lal Kushiari at half the valuation so made minus any sum that might be found due from Mahendra Lal Kushiari to the appellant. The Subordinate Judge appointed arbitrators, who submitted award on 25-2-1952. Objection was raised to the award. However, the court overruled the objection, and confirmed the award by order dated the llth July, 1952. The decree was prepared and signed on 12-10-63. According to the decree the appellant was entitled to recover a total sum of Rs. 7,895/- from Mahendra Lal Kushiari. The appellant put the decree in execution on 20-9-66 in Execution Case No. 59 of 1966 against the respondents, they being the sons, daughters and widow of Mahendra Lal Kushiari who died before the execution was levied. Ram-chandra Kushiari respondent No. 1, one of the sons of Mahendra Lal Kushiari, on being served with a notice under Order 21, Rule 22 of the Civil Procedure Code (hereinafter referred to as 'the Code'), filed an objection to the maintainability of the said execution case. His objection was registered as Misc. Case No. 1004 of 1966. Respondent No. 1 in the rejoinder application inter alia pleaded that the said execution case was barred under Article 182 of the Act, and that Mahendra Lal Kushiari having died on 19-2-62 prior to the drawing up of the decree the decree was a nullity, having been drawn up against a dead person. No rejoinder to the said application of respondent No. 1 was filed on behalf of the appellant. However, they appeared before the court of Subordinate Judge, and opposed the contention advanced on behalf of respondent No. 1. The learned Subordinate Judge after hearing the parties held that the decree was not a nullity, but the execution of the decree was barred under Article 182 of the Act. Hence, this appeal.

(3.) ON the other hand, Mr. Shilesh Chandra Mishra, appearing on behalf of the respondents, contended that on the facts and in the circumstances of the case, the limitation would run from llth of July. 1952, the date on which the award was confirmed and not from the date on which the decree was signed, namely, 12-10-63. He drew my attention to the provisions contained under Section 333 of the Code which reads:-- "The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow." He also referred to Order 20, Rule 7 of the Code which runs--