SURAJ BHAN Vs. MAHAVIR PRASAD

JUDGEMENT

(1.) THIS is a second appeal by one of the decree-holders. Suraj Bhan, from the judgment of the District Judge, Alwar, dated the 10th of January, 1948, by which an execution petition filed by the decree-holders for execution of their decree was held to be time-barred.

(2.) THE facts of this case are that Suraj Bhan and others filed an execution petition on the 22nd of August, 1934, for execution of their decree, dated 30th October, 1925, for an amount of Rs. 2200/- with costs. THE decree was originally passed against Ramrichpal, and after his death his legal representatives were brought on the record. Some house property was attached. Shri Govind filed an objection petition on the ground that the property belonged to him. THE objection petition was allowed on the 27. 11. 1936, and consequently the property was released from attachment. THEreafter the decree-holders continued the execution application in connection with a Biswa belonging to the judgment debtor. THEy also filed a suit for declaration that the property, which had been released from attachment, belonged to the judgment-debtor, and was liable to be sold in execution of the decree. THE suit was decreed by the trial court on the 14th of February, 1938, but on appeal the District Judge having set aside the first court's judgment remanded the case for fresh decision. THEreafter on the 19th of September, 1939, the trial court dismissed on suit; but on appeal the suit was decreed on the 18th of March, 1940. A second appeal was filed in now defunct Alwar High Court, and on the 18th of December, 1941, the judgment and decree of the Court of District Judge were confirmed. In the meanwhile, the execution petition was dropped on the 19th of October, 1937, as the decree-holders expressed their inability to furnish the addresses of some of the judgment-debtors, in connection with the proceedings in execution relating to the attachment of the Biswa belonging to the judgment-debtors. After the decision of the suit of the decree-holders an application was moved on the 30th of April, 1945, for revival of the execution proceedings. THE Judgment-debtors raised an objection on the 15th Dec, 1954, that the application was time-barred, as it had been presented after three years from the date of the High Court. THE court executing the decree disallowed the objection, and proceeded to execute the decree. THE judgment-debtors went in appeal to the Court of the District Judge, and the learned District Judge held that the execution petition was time-barred. Suraj Bhan one of the decree-holders, has come in appeal against the said order of the District Judge.

(3.) THE opposite party has referred to Desraj Singh and other vs. Karam Khan (3), which is a case which can be said to be very similar to the present one; but the observations of Thom C. J. , which have been reproduced above, relating to the decision in Chhattar Singh vs. Kamal Singh (4) (A. I. R. 1927 Alld. , 16.), equally apply to the decision in Desraj Singh vs. Karam Khan (3 ). THE decision in Desraj Singh (3) proceeded on the assumption that it was the duty of a decree-holder to move the execution Court for reviving the execution proceedings, and this question was not pertinently discussed. We do not think that Desraj Singh vs. Karam Khan (3) (I. L. R. XIX Alld. , 71.) lays down a correct proposition of law on this point.