SARDAR BADRI NARAIN SINGH Vs. CHOTANAGPUR BANKING ASSOCIATION

JUDGEMENT

(1.) The question falling for decision in this application is as to whether the execution proceeding against the properties in question, which were added beyond a period of twelve years from the date of the decree, can proceed or not.

(2.) The petitioners are claimants under Order 21, Rule 58, of the Code of Civil Procedure and claim the properties to belong to petitioner No. 2 and not liable to be proceeded against in the execution proceeding in question. The relevant facts are as follows :

(3.) The official liquidator of the Chotanagpur Banking Association, a banking company which went into liquidation in the year 1958 (Company Act Case No. 1 of 1958), obtained a decree on December 22, 1961, from the learned company judge of this court in the course of the winding-up proceeding of the said company by settling Raja Bahadur Kamakhya Narain Singh of Ramgarh on the debtors' list in pursuance of the provisions contained in Section 45D of the Banking Regulation Act, 1949, for a sum of about Rs. 15,00,000. Execution of the said decree was levied in the court of the subordinate judge, Hazaribagh, on March 3, 1967, and the official liquidator proceeded against a landed property purporting to belong to the judgment-debtor, commonly known as Padma Palace. By an order dated April 10, 1970, passed in the aforesaid liquidation proceeding, the execution case was transferred to this court and numbered as M.J.C. No. 2 of 1970 in this court. The wife of the judgment-debtor, namely, Shrimati Lalita Rajya Lakshmi Devi, filed an objection to the execution of the said decree against the said property on the ground that the same belonged to her. The claim application of the Rani was allowed on December 3, 1974. There being no other property against which the execution could proceed, the official liquidator made an application for amendment of the execution petition by adding new properties, and by an order dated May 13, 1975, the amendment was allowed by this court and the execution proceeded against the newly added properties. When attachment was made of these properties, the petitioners filed an application on November 19, 1975, under Order 21, Rule 58, of the Code of Civil Procedure, which has been registered as M.J.C. No. 6 of 1975, claiming the properties in question as the properties of petitioner No. 2 on the ground that much before the passing of the decree against the judgment-debtor, the properties in question were dedicated to a religious and charitable trust (petitioner No. 2) by a registered deed dated September 7, 1950, and since then petitioner No. 2 has been in possession over the same in its own right, the judgment-debtor having been left with no interest whatsoever in the same. After filing of this application, an application was made on their behalf on May 3, 1976, purporting to be under Order 14, Rule 2, of the Code of Civil Procedure, for deciding as a preliminary issue the question as to " whether the amendment petition and the amendment allowed are barred by limitation before the petitioners are asked to lead evidence in support of their case ". It may be stated that in the application under Order 21, Rule 58, of the Code of Civil Procedure, giving rise to M J.C. No. 6 of 1975, no plea of limitation is taken and the objection was confined, as it ought to be, within the four corners of Order 21, Rule 58, of the Code.