MANGAL MAHTO Vs. BIHARI MAHTO AND ORS.

JUDGEMENT

(1.) This is a judgment -debtor's Miscellaneous First Appeal from the order dated the 19th September, 1966, passed by the court below in Miscellaneous Case No. 10 of 1966, by which it has refused the objection of the appellant under Sec. 47 of the Code of Civil Procedure. There was a compromise decree passed on 14.9.1960. The appellant filed an application under Sec. 151 of the Code of Civil Procedure, asking the Court which had passed the decree to set it aside or to recall it on the ground of fraud. That Court rejected this application on 18.2.1961, holding that fraud was not proved. The appellant preferred an appeal to this Court which was eventually dismissed on 6.4.1964 on the finding that no appeal lay from the order dated 18.2.1961 of the court below. The execution case in which the objection was filed by the appellant was levied by the decree -holder -respondents on 27.4.1966. The appellant took two objections; (i) that the decree is not executable, and, (ii) that the execution case is barred by limitation. The learned Additional Subordinate Judge has repelled both the objections and hence the appeal by the judgment -debtor. In our opinion, the execution case filed on 27.4.1966 is clearly barred by limitation. Although the execution case was filed after coming into force of the Limitation Act, 1963, which came into force on the 1st January, 1964, and although according to Article 136 of the new Limitation Act, the execution case, prima facie, was not barred by limitation, it was so barred in view of the provision of Sec. 31(a) of the new Limitation Act, which says:

(2.) In the view which we have taken on the question of limitation, it is not necessary for us to express any opinion on the question of executability of the decree. In the result, the appeal succeeds and is allowed. The order of the court below is set aside. The execution case is dismissed as barred by limitation. There will be no order as to costs in this Court or in the court below.