SAVITRI DEVI Vs. SARASWATI DEVI

JUDGEMENT

(1.) This appeal by the judgment-debtors is directed against the order of the Courts below holding that the application for execution (Execution Case No. 31 of 1963) filed by the decree-holders-respondents first party was not barred by limitation.

(2.) That application for execution was filed on the 16th October, 1963. The decree which was sought to be executed was the decree of the High Court, dated the 6th August. 1958, passed in First Appeal No. 236 of 1952 arising out of Money Suit No. 42 of 1951. It was passed in favour of Maheshwar Prasad husband of Mt. Saraswati Devi (respondent No. 1) and father of Suman Prasad (respondent No. 2). Prior to the decree passed by the High Court, respondents Nos. 1 and 2 along with others instituted Title Suit No. 2/22 of 1958/1959 against Maheshwar Prasad for partition of various properties including the decree in Money Suit No. 42 of 1951. The matter was referred to arbitration and on the 12th February, 1960, the suit was decreed in terms of the award, vide order sheet Ex. A/1. By the award the decree in the said money suit was allotted to the share of respondents Nos. 1 and 2 (Schedules 4 and 5 of the award). But before the final decree in terms of the award could be prepared, respondent No. 1 for self and as guardian of her son respondent No. 2 filed an application for execution of the decree of this Court passed in the aforesaid first appeal and Money Execution Case No. 13 of 1960 was started. In that execution case the appellant-judgment-debtor Dasrath Prasad Singh (after whose death his successors have been added as appellants) filed an objection which came to be registered as Miscellaneous Case No. 17 of 1961. By his order dated the 23rd April, 1963. the Additional Subordinate Judge. I Monghyr, held that as no decree in terms of the award had been prepared in the title suit, and respondents Nos. 1 and 2 were not parties to the decree passed by the High Court, they were not entitled to execute the decree in question. It also appears from the certified copy of the order sheet in Money Execution Case No. 13 of 1960 (Exhibit A) that the prayer to amend the execution petition was rejected by order dated the 2nd July, 1963, and the execution case was dismissed as upto that date no decree had been prepared in terms of the award. The final decree in Title Suit No. 2/22 of 1958/1959, in accordance with the award, was prepared, sealed and signed on the 16th September. 1963, and on the 16th of October. 1963, the execution petition (Execution Case No. 31 of 1963) giving rise to this appeal was filed. The main objection taken by the appellant-judgment-debtor was that the execution case filed on the 16th of October. 1963, was barred by limitation and that the application for execution in Execution Case No. 13 of 1960 not being in accordance with law, could not save limitation. Other objections raised on behalf of the judgment-debtor was not pressed in any of the two Courts below and, therefore, require no consideration.

(3.) It is admitted that if the prior application for execution (Execution Case No. 13 of 1960) had been made in accordance with law, the present execution case (No. 31 of 1963) would not be barred by time under Article 182 (5) of the old Limitation Act which gave a period of three years from the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order. It is admitted that the present application for execution was filed within three years of the final orders passed in the earlier execution case.