KHUBI LAL Vs. HIRA LAL

JUDGEMENT

(1.) This is an appeal against the decision of a single Judge of the Rajasthan H. C. dated 28-10-1949. One Hukam Chand obtained a decree against Kishen Lal in St. 1944 for redemption of a shop. The shop was originally mtged by Nawal Chand Nihal Chand with Sawai Ram Samuram who sub-mtged it to Hukam Chand, & the latter mtged his rights in the property with Kishen Lal. The terms of the decree as passed by the Mahdraj Sabha, Udaipur, in St. 1944, were that on payment of Rs. 110/10/3 by Hukam Chand, the resp Kishen Lal shall deliver possession of the property in suit to the pltf Hukam Chand. The decree-holder made an appln thereafter that as he was not in a position to pay the mtge money in a lump sum, the amount may be ordered to be paid by instalments but that he may be put into possession of the mtged property. This petition was dismissed in St. 1953 for default.

(2.) After a lapse of nearly 50 years, Khubi Lal filed an appln for execution of the decree on 7-10-1947 in the Ct of Munsif Udaipur City. It was opposed on the ground of limitation, by the resps who had acquired an interest in the property from Kishen Lal. The learned Munsiff disallowed the & the same judgement was upheld in appeal. On the case coming before Amar Singh J. in Single Bench at Udaipur, he held the appln for execution barred by time & dismissed it. Against that order, the present appeal has been filed.

(3.) The learned counsel for the applt relied on Section 48, Mewar Civil Procedure Code, which allowed a period of 12 years for presentation of an appln of the execution of a decree passed prior to the enforcement of the Code. That provision, however, presupposes that the appln was otherwise maintainable. The law of Limitation was first introduced in Mewar in 1932 & Section 22 thereof provided a period of 6 months for presentation of an appln for which no period of limitation was provided by earlier law except in cases where longer period of limitation was available under the provisions of the Act. A government circular dated 28-8-1935 provided for filing of execution petns within a period of one year from the date of publication of the notice. The learned counsel for the applts argued that the circular of 28-8-1936 had no binding force as it was not promulgated by competent legislative authority. Without expressing any opinion on the subject, it may be stated that the said circular was only an enabling one & is irrelevant since the applt did not take any action under the same. It is conceded that no appln was presented for execution of the decree within 6 months of the enforcement of the Mewar Limitation Act 1932 as provided by Section 22 of that Act . It was contended that this section was not applicable as an appln for execution of the decree had already been presented in the year St. 1944, which was dismissed for default in St. 1953. It was urged that according to the decisions of the Mewar H. C, an appln for execution once presented continued to remain pending till the decree had been satisfied &, therefore, the order of dismissal for default in St. 1953 did not really amount to a rejection of the petn but only kept the petn In abeyance till it was revived by the fresh appln filed on 27-10-1947. The learned counsel relied on certain unreported decisions of the Mewar H. C. It is unnecessary to refer to these decisions as in the present case the appln was rejected in St. 1953, & by no stretch of imagination, it can be held in this case that the appln remained pending &, therefore, continued to remain so till it was unsatisfied. The appln presented by the decree-holder cannot also be stated to be one for the execution of the decree, since what he prayed in that petn was for a modification of a decree so that he may be able to pay the amount of mtgemoney by instalments.