CHANDRA MOULI DEVA Vs. BINOYA NAND SINGH

JUDGEMENT

(1.) This appeal by the decree-holder opposite party arises out of an order passed under Section 47 of the Code of Civil Procedure dismissing the execution case as barred by limitation.

(2.) To appreciate the points involved in the case, it will be necessary to mention ,a few dates. The judgment in Money Suit No. 17/3 of 1953/57 was delivered on 24th August, 1957. The decree, which was for recovery of Rs. 21,154/13/4 besides costs, was sealed and signed on 16th November, 1957. Execution petition was presented on 10th October, 1969 for execution of the aforesaid decree. This application was registered as Execution Case No. 13 of 1969 before the Second Additional Subordinate Judge, Bhagalpur. The judgment-debtors respondents appeared and filed objection under Section 47 of the Code of Civil Procedure contending, inter alia, that the decree could not be executed as it had become barred by lapse of time. The court below on a consideration of the materials placed before it came to the conclusion that Article 136 of the Limitation Act, 1963 (hereinafter to be referred to as the Act) was applicable and the fact that the junior advocate of the decree- holder-appellant was under the wrong impression that time began to run not from 24-8-1957 but from 17-11-1957 was immaterial and that the prayer in the circumstance for condoning the delay, could not be allowed. Since the execution was levied beyond the period of 12 years, the court below held that the execution was barred by limitation as provided under Article 136 of the Act. It accordingly dismissed the execution case. Hence this appeal by the decree nholder-appellant.

(3.) Mr. T. K. Prasad in support of the appeal first contended that the scope of Section 5 of the Limitation Act, 1963, has now been made much wider than what it was under the Limitation Act, 1908. He contended, therefore, that the delay, if any, in filing the execution petition should be condoned as it was caused on account of wrong advice given by the junior advocate. It is true that the scope of Section 5 of the Act is now wider but this Section itself excludes admittance of any application under any of the provisions of Order XXI of the Code of Civil Procedure after the period prescribed by the Act. It is clear, therefore, that the time prescribed by the Act cannot be extended under any circumstance under this section. This argument, therefore, must fail.