FIRM DHANNALAL MAGANLAL Vs. SURAJMAL

JUDGEMENT

(1.) This is a decree-holder's first appeal under Section 96 read with Section 47 of the Code of Civil Procedure against the judgment and decree of the Civil Judge, Sambhar dated the 12th of August, 1955 dismissing the decree-holder's fourth execution application as barred by limitation.

(2.) In order to appreciate and adjudicate upon the controversy raised in this appeal, it will be necessary to state the following facts:

(3.) The decree-holder Firm Dhaunalal Muganlal of Madanganj obtained a decree for Rs. 7321/-against Surajmal, Lalchand and Moolchand from the court of the District Judge, Kishangarh on 29th April, 1946, which was confirmed in appeal by the High Court. The decree-holder put in the first execution application on 1st March, 1948. It may be mentioned here that the judgment-debtors belonged to town Shali outside the jurisdiction of Kishangarh courts. It appears that the judgment-debtor Moolchand was reported bo have gone to Dadi within the jurisdiction of the Kishangarh State and the decree-holder took an opportunity of executing his decree for the first time. It was stated in the application that the judgment-debtor Moolchand was reported to have gone to Dadi to his father-in-law's house and that a warrant for his arrest might be issued. Along with the application for execution, an application was also presented requesting the court to dispense with the issue of notice and to issue a warrant immediately under Order 21 Rule 22, Sub-rule (2) C. P. C. as it was apprehended that the judgment-debtor would, on receipt of notice, evade execution. The court accepted the application, dispensed with the notice under Order 21 Rule 22 C. P. C. and directed the issue of a warrant. However, no reasons for dispensing with the notice were recorded by the execution court. Attempts were made to arrest the judgment-debtor, but he was not available at Dadi. The application consequently was consigned to record on 5-4-1948. The decree- holder put in the second application before the Civil Judge on 1-9-1950 and sought execution by attachment and sale of the movable and immovable property of the judgment-debtor. This application was also dismissed and consigned to record on 17-4-1951 on the decree-holder's advocate reporting no instructions. The third application was filed on 27-4-1951 and had to be dismissed as the decree-holder prayed for the attachment of the movable and immovable property of the judgment- debtor situated at Shali outside the court's jurisdiction. The fourth execution application was presented in the court of the Civil Judge, Sambhar on 3-101951. The judgment-debtors appeared before the execution court and filed objections to the execution of the decree on 19-11-1951. Their main contentions were that the application was not in accordance with law and the judgment-debtors were not given any notice under Order 21 Rule 22 C. P. C. With regard to the previous applications, it was generally stated that the judgment-debtors never received any notice in connection with the execution of the decree before the institution, of the present application and that they do not, therefore, constitute steps-in-aid and extend any limitation. The execution court accepted the judg-ment-debtors' objections and dismissed the decree- holder's application as barred by time.