SYED MOHAMMAD YAKUB SHAH Vs. SURAJ PRAKASH

JUDGEMENT

(1.) THIS is the second appeal by the judgment-debtor in execution proceedings. The main question raised by the appellant is one of limitation. In order to appreciate the point involved, it will be proper to set out briefly the facts which have given rise to this appeal.

(2.) THE respondent obtained a decree on 22. 3. 50 and presented an application for execution on 6th April, 1951. This was the first application for execution and it was dismissed on 31-12-52, on account of the decree-holder's failure to deposit expenses for notice to the judgment-debtor. He presented another application on 4. 5. 55 but it was also dismissed in default on 18. 1. 56. THEreafter, he presented a third and the last application on 19. 3. 56. When the judgment-debtor appeared in response to the notice issued to him, he raised an objection that this (last) application was barred by limitation. This objection was, however, dismissed by the court. He went in appeal and the learned District Judge, Ajmer, dismissed the appeal on 13. 3. 57, and so, he has approached this Court.

(3.) THE last lease relied upon by learned counsel for the respondent is Balaji Vs. Gopal (8 ). In that case, the decree-holder had simply made an application for rateable distribution of the sale proceeds of the debtor's property which was attached in execution of another decree. A question was referred to the Full Bench whether such an application could be taken as valid application for execution within the meaning of O. 21, R. 11 C. P. C. and whether the view expressed in Dwarkadas Vs. Ghasiram (A. I. R. 1921 Nag. 5) was too narrow. THEir lordships answered the reference in the negative and it was held that the view taken in Dwarkadas' case was correct. In other words, it was held by the learned Judges that a mere application for rateable distribution could not be taken as a valid application for execution within the meaning of O. 21, R. 11 C. P. C. Learned counsel wants to take the advantage of a passing remark which was made by the learned Judges in Balaji's case (8) to the effect that an application for rateable distribution may be considered as a step in aid of execution so as to save limitation. I have carefully gone through Balaji's case (8) and in my opinion this remark was made by the learned Judges simply because learned counsel who was arguing the case wanted to take analogy from Art. 182 of the Limitation Act. THE learned Judges while considering that argument observed that the point seemed to be one of difficulty, but it was not helpful to the decree-holder in establishing that an application for rateable distribution would be taken as a proper application for execution of the decree. It was in that connection that the learned Judges made a reference in passing that even though it may be considered a step in aid of execution so as to save limitation, it could not be considered as an application for execution made in accordance with law. THE learned Judges did nor examine the question from the point of view of limitation at length. Moreover, the observation of the learned Judges was obiter inasmuch as the question of limitation did not directly arise in that case. THErefore, Balaji's case (8) is also not helpful to the respondant.