NORATI Vs. ABHAI KARAN

JUDGEMENT

(1.) THIS is a first appeal by the judgment-debtor in execution proceedings.

(2.) THE respondents obtained a decree for recovery of Rs. 5078/- from the court of the Civil Judge, Sambhar on 20th December, 1944 and the appeal of the defendant was dismissed by the District Judge, Jaipur on 19th January, 1946 on merits. The defendant filed a second appeal on 18th April, 1946. It was dismissed for default of appellant on 8th September, 1948. The first application for execution of the decree was made on 16th September 1949 against Mst. Norati and others, legal representatives of the judgment-debtor. The second application was made on 21-2-55. An objection was raised on behalf of the judgment-debtor that the application was barred by time because the earlier application filed on 16th september, 1949 was made after the lapse of three years of the decree of the district Judge which had been passed on the 19th January, 1946. It was contended that the dismissal of the second appeal by the High Court for default of appellant did not give a fresh start of limitation as at could not be considered to be a decree or a final order.

(3.) RELIANCE was placed on the case of Batuk Nath v. Munni Dei, 41 Ind App. 104 : (AIR 1914 PC 65) (A ). In that case an appeal preferred to His Majesty in Council was dismissed under Rule 5 of the Order in Council of the 13th June, 1853 because of failure of the appellant or his agent to take an effectual step for the prosecution of the appeal. It was held that it was not a judicial order and the time could not be reckoned from that order under Article 182 (2x of the Limitation Act.