RAMESHWAR PRASAD GUPTA Vs. RAJENDRA PRASAD

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of an order under Section 47 of the Code of Civil Procedure. The objection of: the judgment-debtors has been upheld and the execution case has been dismissed as being barred by limitation.

(2.) The facts briefly put are the following. A decree was passed against the judgment-debtors on the 17th of March, 1939. Execution of the decree was taken out in 1939 in Execution Case No. 124 of 1939. On the 12th of September, 1939, the properties sought to be sold were attached. One of the judgment-debtors filed an application on the 29th November, 1939, objecting to the attachment of some of the properties on the ground that those properties were not liable to attachment and sale. This objection was numbered as Miscellaneous Case No. 150 of 1939, and it was allowed on the 6th of January, 1940. Against this order, there was an appeal to this Court, (Misc. Appeal No. 114 of 1940) by the decree-holder, and during the pendency of this appeal, the executing Court passed an order on the 28th of January, 1941, to the effect that the execution case be dismissed on part satisfaction, as it appears, some of the properties had been sold in the meantime. The Miscellaneous Appeal No. 114 of 1940 was allowed on the 2nd of September, 1941, and the case was remanded to the Court below for deciding the objection in accordance with law. On remand, the executing Court, by its order dated the 15th of January, 1942, rejected the objection to the attachment of some of the properties and asked the decree-holder to take steps. Against this order of the executing Court rejecting the objection, Miscellaneous Appeal No. 139 of 1942 was filed in this Court on the 23rd of April, 1942. But, it appears, the proceedings in execution were not stayed and property was sold at auction on the 18th of September, 1942, and on the 18th of November, 1942, the executing Court passed the' following order "Sheristadar's report perused. Thirty days expired. Let the sale be confirmed and the execution case be dismissed on part satisfaction. Prepare sale certificate." On the 27th November, 1942, the order-sheet shows, the sale certificate was prepared, sealed, and signed. On the 16th of December, 1942, the High Court ordered stay of delivery of possession pending the disposal of the Miscellaneous Appeal No. 139 of 1942, and on the 28th of July, 1944, the Miscellaneous Appeal No. 139 of 1942 was dismissed for non-prosecution. The order-sheet of the 29th of August, 1944, in the execution case shows that the copy of the order of this Court in Miscellaneous Appeal 139 of 1942 was received by the executing Court, and the decree-holder was asked to take steps by the 11th September, 1944, No steps having been taken --and perhaps none was necessary to be taken -- the Court ordered on the 9th of November, 1944: "No step taken. Case disposed of". The present application for execution has been filed on the 18th of July, 1947. The Court below has held that the execution case having been dismissed on part satisfaction on the 28th of January, 1941, and the present execution having been filed more than three years after, it was barred by limitation.

(3.) Mr. Rai Parasnath, learned counsel ap- pearing on behalf of the appellant, has contended that the final order in the last execution case was passed either on the 9th of November, 1944, the last order in the previous execution case, or at the earliest on the 28th of July, 1944, when the High Court dismissed Miscellaneous Appeal No. 139 of 1942. So far as the last order dated the 9th of November, 1944, is concerned, there is no doubt that that cannot be the final order in the execution case. That was the last order in that execution case, but it, by no means, can be said to be the final order passed upon an application for execution. The question, therefore, turns upon the interpretation of the words "final order" as mentioned in Article 182, Sub-clause (5) of the Indian Limitation Act. That clause runs as follows: