SURJAN SINGH Vs. GINDORILAL

JUDGEMENT

(1.) THIS is a second appeal In execution proceedings.

(2.) KISHAN Lal son of Sedh Mal and Shri Dhar son of Shiv Prasad obtained a decree against Bhim Singh on the 28th May, 1925, for recovery of Rs. 712/- besides costs and interest. The decree-holders put their decree in execution and the last application filed by them was so done on 25th January 1932, which was dismissed on 16th March, 1933, without recovery of any amount. KISHAN Lal died, and an application was filed on 24th March, 1933 by Gulzarilal as successor in interest of KISHAN Lal, one of the decree-holders. This application was also dismissed without recovery of any amount on the 14th of August, 1933. The next application was filed by Gulzarilal on behalf of Gindorilal and Madan Lal, minor sons of KISHAN Lal, as their guardian as also on his own behalf on the 4th of May, 1935. Similar applications for execution were presented on 7-2-36 and 8-3-39. The next application was filed on the 2nd of April, 1942, by Gulzarilal and in an accompanying application it was mentioned that the heirs of KISHAN Lal were his two minor sons Gindoori Lal and Madan Lal under the guardianship of Gulzarilal, and that the names of Gulzarilal and Badrilal as legal representatives of KISHAN Lal had wrongly been made out earlier. It was also stated that Shri Dhar had also died in the meanwhile, and his sons were Murari Lal major and Kishorilal minor under the guardianship of Murarilal, whose names had also been entered in the application. This application was also made by Gulzarilal. Further applications for execution were submitted on 1-2-44, 21-1-47, 17-3-47, and 21st February, 1950. The judgment-debtor appeared in response to the notice on the last application, and made an objection that the application was barred by time. It was urged that the application of 24th March, 1933, was presented by Gulzarilal, who was not competent to do so, and the next application of 4th May, 1935, became barred by time, if the application of 24th March, 1933, was taken out of consideration. It may be mentioned that on the 4th of May, 1935, the Limitation Act, which was in force in Jaipur, provided for a period of three years for presenting an application for execution from the last date of execution. The amendment permitting a period of three years from the date of the last order on the previous application was made on the 5th of May, 1937 (vide Jaipur Gazette of 15th May, 1937 ). The trial Court accepted the plea of the judgment-debtor, and dismissed the application of 21st February, 1950, as barred by limitation.

(3.) OF the two cases relied on by the lower Court, the Calcutta case was one in which the earlier application was dismissed on part satisfaction. The other case of Madras no doubt lays down that "if the service was sufficient, then the judgment-debtor was bound by all orders passed Which impliedly decided any question that he might have raised with regard to the executability of the decree". A different view, however, was apparently taken in AIR 1954 Mad 1 (H), which was decided by a Division Bench.