PRAHLAD RAI TULSIAN Vs. DAULAT SINGH

JUDGEMENT

(1.) The decree-holder is the appellant. He obtained a money decree against the respondents for about Rs. 71,000/- on the 28th of April, 1953. The decree was put in execution on the 4th of January, 1954, in Execution Case No. 2, of 1954 in the Court of the Subordinate Judge at Madhipura. The property of the judgment-debtor-respondents was sold in that execution case and purchased by the appellant on the 2nd of May, 1955, and the sale was confirmed on the 3rd of June, 1955. The sale was, however, set aside on the 6th of July, 1955 for default of the appellant to file necessary stamps etc. for preparation of the sale-certificate, and the appellant was asked to take steps in the execution case. He, however, did not take any further steps in the execution case and the same was dismissed for default on the 13th of July, 1955. Thereafter, on the 13th of August 1955, he made an application under Section 151 of the Code of Civil Procedure for recalling the order, dated the 6th of July, 1955, whereby the sale had been set aside for default in filing stamps etc. as stated above. That application was dismissed on the 2nd of March, 1956. The appellant came up to this Court in Civil Revision No. 606 of 1956, but the same was also dismissed in limine on the 21st of September, 1956. A fresh execution petition for realisation of the decretal dues was made on the 19th of September 1959. An objection was raised by respondent No. 1 (hereinafter to be referred to as the respondent) to the execution oi the decree on various grounds, but the only ground that was pressed in the Court below and with which we are concerned in this appeal was of limitation. It was contended on behalf of the respondent that, the execution case having been dismissed on the 13th of July, 1955, the execution petition filed on the 19th of September, 1959 was barred by limitation as having been filed beyond three years of the dismissal of the previous execution case. On behalf of the appellant it was contended that the period of three years would be counted from the 21st of September, 1956 when the civil revision application was dismissed by this Court. The executing Court rejected the contention of the appellant and gave effect to the plea taken by the respondent and held the execution case to be barred by limitation. Being thus aggrieved the present appeal has been filed by the decree-holder.

(2.) Counsel for the appellant has put forward an argument that the application filed on the 13th of August, 1955 for recalling the order dated the 6th of July, 1955, by which the sale was set aside as well as the civil revision application filed in this Court were steps in aid of execution within the meaning of Clause (5) of Article 182 of the Limitation Act and the period of three years for. filing a fresh execution would start from the 21st of September, 1956 on which date the civil revision application was dismissed by this Court,

(3.) Clause (5) of Article 182 of the Limitation Act lays down that the period of limitation for execution of a decree or order of any Civil Court, not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908, is 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 steps in aid of execution of the decree or order. For the application of the above provision, it is, therefore, necessary that some steps in aid of execution of the decree must have been taken in accordance with law in the proper Court. The expression "step in aid of execution" means