MAKSUDAN PRASAD Vs. LAKSHMI DEVI

JUDGEMENT

(1.) In this appeal by the judgment-debtor whose objection under Section 47 of the Civil P. C. had been rejected, the question is as to what would be the 'date of decree' within the meaning of Article 182 of the old Limitation Act for the purpose of computing the period of limitation for executing the same. The decree under execution is a final decree in a suit for partition.

(2.) The partition suit was instituted in the year 1945, and the judgment was delivered on 28-11-1949. The preliminary decree was thereafter passed on 3-1-1950 and a commissioner was appointed to prepare the final decree in terms of the rights of the parties declared under the preliminary decree. On 18-5-1955 the trial Court accepted the commissioner's report and passed the following order. "The suit is decreed finally in terms thereof (commissioner's report). The report shall form part of the decree. Parties should file non-judicial stamps for preparation of the final decree". Immediately thereafter a miscellaneous case was filed for making certain corrections in the preliminary decree itself and by order dated 24-8-1957 the Court came to the conclusion that the preliminary decree was not drawn up in accordance with the judgment and it ordered corrections as pointed out by the applicant The decree was accordingly amended, which was substantial in nature. It further appears that some other miscellaneous cases, including one for preparation of the final takhtabandi were filed. A pleader commissioner was also appointed to carve out the takhtabandi etc., and ultimately by the order dated 18-2-1964 the court ordered :

(3.) The present execution case was filed on 23-8-1966 and then the application under Section 47 of the Code taking the objection of limitation was filed on the ground that the 'date of decree' would be the 'date of judgment' within the meaning of Order XX Rule 7 of the Code and limitation would be computed right from 28-11-1949, the date of the judgment And, therefore, the application was barred by limitation.