NAGESHWAR PRASAD SINGH Vs. SONA DEVI

JUDGEMENT

(1.) This is an appeal by one of the judgment-debtors. It appears that the plaintiff-respondent instituted a money suit, being Money Suit No. 43 of 1955, against the appellant and his brother Bageshwar Prasad Singh, which was decreed in terms of compromise entered into between the parties. According to the terms of the compromise, the claim of the plaintiff was to be decreed in full, but the decree was not to be executed for a period of two years and nine months from the date of the decree and the decree-holder was entitled to execute the decree only after March, 1959. According to the decree, attachment of certain properties mentioned in the compromise petition was to continue till the realisation of the decretal dues. The amount of the decree not having been paid by March, 1959, the decree-holder started execution on the 2nd May, 1959. But columns 3, 7, 8 and 10 of the execution petition were found to be defective and in spite of several adjournments given to the decree-holder for removal of the defects, the defects were not removed. Ultimately, on the 28th September, 1959, the execution case was dismissed for default. A fresh execution was started on the 11th February, 1960 for realisation of the decretal dues to which an objection was raised on behalf of the appellant that the execution was barred by limitation as having been levied beyond three years from the date of the decree. On be-half of the decree-holder limitation was sought to be saved on the ground of the previous application for execution dated the 2nd May, 1959, which, as already stated, had been dismissed on the 28th September, 1959. The contention raised on behalf of the appellant was that the limitation could not be saved by the previous execution case as the same was not in accordance with law on account of the defects regarding the contents of columns 3, 7, 8 and 10 of the execution petition.

(2.) The executing Court accepted the objection raised on behalf of the appellant and held that the previous execution case could not save the limitation and the present application for execution was barred by limitation. Accordingly, the objection was allowed and the execution case was dismissed. On appeal by the decree-holder, the lower Appellate Court took a contrary view and held that the defects pointed out in columns 3, 7, 8 and 10 of the previous execution petition were minor defects which could be remedied at any time even by the Court itself and, as such the previous execution was in accordance with law which saved the present application from being barred by time. It also took the view that, apart from the question of the previous execution being in accordance with law, the present application must be held to be within time on the simple ground that the decree itself was payable only in March, 1959 and the period of limitation for its execution would, therefore, start from March, 1959, and not from the date on which the decree itself was passed. The appeal in the lower Appellate Court was, accordingly allowed and the objection raised on behalf of the appellant was dismissed. Being thus aggrieved, the judgment-debtor has filed this miscellaneous second appeal.

(3.) In the present appeal, the first question that arises to be considered is whether the period of limitation for executing the decree in question would start from March, 1959, on which date the decree was payable or from the 26th June, 1956, on which date the decree was passed. If this question is answered in favour of the decree-holder, the other question as to whether the previous execution was in accordance with law or not need not be considered.