RAMENDRA KUMAR Vs. BRAJAMOHAN

JUDGEMENT

(1.) This is an appeal by the decree-holders from an appellate order dismissing their application for execution of a rent decree. The amount of the decree including the cost of execution, does not exceed Rs. 500. It was passed on 9th June 1931. After some previous executions the present application for execution was filed on 7th December 1937. Prima facie, therefore, it was time-barred, being filed more than three years from the date of the decree. The decree-holders relied on certain payments and acknowledgments. The learned Munsif held that the payments and acknowledgments saved limitation. He accordingly ordered the execution to proceed. On appeal, however, the learned District Judge held that the provisions of Sections 19 and 20, Limitation Act, were not applicable to the case, and therefore, he allowed the appeal and dismissed the execution case.

(2.) Hence, this appeal by the decree-holders. The decree in question being a rent decree, limitation will be governed by the provisions of the Orissa Tenancy Act. In that Act limitation is dealt with in Chap. 18 which consists of only two sections, namely, Sections 238 and 239. Section 238 (omitting the portion which is not material for our present purpose) runs as follows: (1) The suits, appeals and applications specified in Sob, 3 shall be instituted and made within the time prescribed in that schedule for them respectively; and every such suit or appeal instituted, or application made, after the period of limitation so prescribed, shall be dismissed, although limitation has not been pleaded." Section 239 provides: (1) Sections 6 to 9, Limitation Act, 1908, shall not apply to the suits and applications mentioned in Section 238(2) Subject to the provisions of this Chapter, the provisions of the Limitation Article, 1908, shall apply to all suits, appeals and applications mentioned in Section 238."

(3.) It is not disputed that the present application for execution will be governed by Article 8, in Schedule 3 of the Act. That Article is in these words: <TAB> ______________________________________________________________ | | Time from which |period of |Period behins to Description of application |limiaation | run. ________________________________________________________________ 8. For the execution of a |Three years. |(1) The date of the decree or order made in | |decree or order; or suit under this Act or | |(2) where there any enactment repealed | |has been an ap- by this Act, not being a | |peal, the date of decree for a sum of | |the final decree or money exceeding Rs.500, | |order of the ap- exclusive of any interest | |pellate Court; or which may have accrued | |(3) whether there after decree upon the | |has been a review sum decreed but inclu | |of judgment, the sive of the costs of exe | |date of the deci cuting such decree; ex- | |sion passed on the cept where the judgment- | |review, debtor has by fraud or force prevented the exe cution of the decree,in which case the period of limitation shall be gov erned by the provisions of the Indian Limitation Act, 1908.</TAB>