FIRM MOHAR LAL SAHU Vs. HAR KRISHNA BHAGAT

JUDGEMENT

(1.) The sole question in this appeal is whether the execution of a decree made by the Calcutta High Court on the original side is barred by Article 183, Schedule I, Limitation Act.

(2.) The decree was granted by the Calcutta High Court on 12-7-1929. The present application for execution was made on 1-3-1946, in the Bhagalpur Court after a lapse of twelve years. But On 3-3-1944, the decree-holder had applied to the Calcutta High Court for leave under Order 21 Rule 50, Civil P. C., to proceed against certain partners of the firm. On 3-3-1944, the High Court granted the leave. On behalf of the appellants the argument is addressed that the order of the Calcutta High Court "revived" the decree within the meaning of Article 183, Limitation Act. 2a. The question, therefore, must be determined on the words of Article 183, as a matter of statutory construction.

(3.) There is no definition of the term "revivor" in the Limitation Act, but the historical review contained in the judgments in the cases of Ashootosh Datt v. Doorga Churn, 6 cal. 504: (8 C. L. R. 23), Futteh Narain v. Chundrabati Chaudhrain, 20 Cal. 551 and Jogendra Chandra Roy v. Shyam Das, 36 Cal. 543 : (1 I. C. 168) shows beyond doubt that the procedure for revivor of judgment on the original side of the Calcutta High Court was substantially analogous to the writ of scire facias under the common law. That procedure was subsequently embodied in Sections 248 and 243, Civil P. C., 1882, and was reproduced as Order 21, Rules 22 and 23 of the Code of 1908. Under these provisions, where an application for execution is made, a notice is required to be issued to the person against whom execution is applied for, if more than one year has elapsed from the date of the decree. The notice calls upon him to show cause why the decree should not be execrated against him. If he does not appear or dots not show cause to the satisfaction of the Court, the Court orders the decree to be executed, The order for execution thus made operates as a revivor, but the mere issue of the notice does not by itself produce that consequence Monohar Dass v. Futtah Chand, 30 Cal. 979: (7 C. W. N. 793). The true rule has been enunciated in Kamini Debi v. Agore Nath, 11 C. L. J. 91; (4 I. C. 402), namely, that to constitute revivor of a decree there must be, expressly or by implication, a determination that the decree is still capable of execution and the decree holder is entitled to enforce it.