THAKUR PRASAD SAH Vs. SHEDENI SAH

JUDGEMENT

(1.) All these applications are directed against the order of the first Subordinate Judge of Chapra, dated 13-3-1954, in Miscellaneous cases Nos. 35 and 38 to 43 of 1953, holding that the execution case brought by the decree-holder opposite party should be dismissed on the ground that it is barred by limitation.

(2.) The petitioner in all these cases obtained a decree on 27-5-1939, from the court of the Additional Subordinate Judge of Dibrugarh in the State of Assam. An appeal was taken to the Calcutta High Court from that decree, and on 1-4-1942, the Calcutta High Court dismissed the appeal. There was an application made for a review of the judgment, but the review application was dismissed by the Calcutta High Court on 1-5-1942. The first execution case was taken out by the decree-holder in Execution Case No. 8 of 1945, filed on 9-4-1945. There were subsequently other execution cases filed, but in the present cases we are concerned with the execution case filed on 22-4-1953. The judgment debtor objected that the execution case was barred, but the objection was dismissed for default. Thereafter the opposite parties filed claim cases objecting to the execution of the decree with regard to certain properties attached in execution. In dealing with these claim cases the learned Subordinate Judge of Chapra went into the question whether the execution case was barred by limitation and decided that question in favour of the opposite parties who had filed the claim cases under Order 21, Rule 58, Code of Civil Procedure. The learned Subordinate Judge did not go into the question of the merits of the claims put forward by the opposite parties but vacated the attachment order on the ground that the execution case itself was barred by time and it should be dismissed.

(3.) The argument addressed on behalf of the petitioner in these cases is that the learned Subordinate Judge has committed an error of jurisdiction in going into the question of limitation in dealing with the applications filed under Order 21, Rule 58, Code of Civil Procedure. Counsel for tile petitioner relied upon the language of Rule 58, which is in the following terms :