CHULHAI NAIK Vs. BHARATH NARAIN SINGH

JUDGEMENT

(1.) This is an appeal by a decree-holder against the judgment and the order of the Subordinate Judge of Darbhanga passed in money appeal No. 1/9 of 1953 reversing those of the 1st Munsif of Samastipur passed in Miscellaneous case No. 103 of 1952.

(2.) The short facts are these: One Chulhai Naik obtained a money decree against the respondents in money suit No. 590 of 1939 on 12-4-1940. In execution of that decree in execution case No. 2649 of 1941 a parcel of land belonging to the respondents was sold on 27-10-1941. The sale having been duly confirmed, the decree-holder Chulhai Naik obtained delivery of possession on 24-12-1942. In 1943 the respondents judgment-debtors filed a title suit, being title suit No. 251 of 1943, for setting aside the decree passed in the above money suit and the sale held in execution thereof. The suit was dismissed by the trial court on 25-5-1946, but, on appeal, the lower appellate court held that though the decree obtained in the money suit was a good decree, the sale held in execution thereof was bad as notice under Order 21, Rule 22 of the Code of Civil Procedure was not served on the judgment-debtors. The suit was, accordingly, decreed in part on 22-2-1947, and the sale held in execution case No. 2649 of 1941 was set aside. A second appeal was preferred in the High Court, but that was dismissed on 21-7-1949. On 2-4-1952, the decree-holder, Chulhai Naik, filed an application for execution, being execution case No. 100 of 1952, for realising the decretal dues by sale of land belonging to the judgment-debtors. An objection to the execution was filed by the judgment-debtors who contended that the execution was time barred. The executing court overruled the objection, but on appeal by the judgment-debtors, the lower appellate court accepted their contention & held that the application for execution was barred under article 181 of the Indian Limitation Act. The decree-holder thereupon preferred the present appeal in this Court. He, however died during the pendency of the appeal and his heirs have been substituted in his place.

(3.) It is contended on behalf of the appellants that the application for execution that was made on 2-4-1952, was an application for revival of the previous application for execution made in execution case No. 2649 of 1941, and, it has not been disputed by the learned Counsel for the respondents that it was not so. Thus, it is conceded in this case that the application which gave rise to this appeal was to revive the previous execution case. It has been faintly argued by the learned Counsel for the appellants that there is no limitation for such an application. He had, however, to concede that so fat as this Court is concerned, the point is set at rest by various decisions of this Court that even for such an application there is a period of limitation as provided under article 181 of the Indian Limitation Act. If any authority is needed, reference may be made to Saukhi Singh v. Thakur Prasad Sinha, 18 Pat LT 90: (AIR 1937 Pat 43) (A). In that case in execution of a decree obtained in 1921 some property of the judgments-debtor was sold on 30-1-1928. The sale was, however, set aside on 14-3-1934, and the decree-holder, thereafter, filed an execution petition for the resale of the property. It was held that the effect of the application was a revival of the previous execution and it was governed by article 181 of the Limitation Act.