BRIJ MOHANLAL Vs. KANHAIYALAL

JUDGEMENT

(1.) THIS is second appeal by the judgment-debtors in execution proceedings.

(2.) KANHAIYALAL respondent had a decree against the appellants Brij Mohanlal, Bherunlal and Rameshwar for recovery of money, which he had obtained from court of Munsif, Dausa, on the 11th of January, 1935. Various applications for execution of the decree were made, and the last one was presented on the 7th of April, 1953. The judgment-debtors filed an objection that the decree-holder had not presented any application for execution after 1944, and, therefore, the present application was barred by time. This subsequently boiled down to an objection that an application which had been presented on 16th March, 1 45, by the decree-holder was not an application in accordance with law, and if that application was taken out of consideration, the subsequent applications and the application now presented were time-barred. According to the facts stated in the judgment of the two courts, and which are not disputed, one Shyamlal had obtained a decree from the court of Munsif, Dausa, against the same judgement-debtors. Shyamlal had put his decree in execution for attachment and sale of the judgment-debtors' property. While proceedings were being held in the application for execution of Shyamlal's decree, Kanhaiya Lal decree-holder made an application on 16th March, 1945, in Form No. 6, Appendix E, C. P. C. , as required by O. XXI, r. 11 of the Code. In column No. 10 of the Form the relief claimed by the decree-holder KANHAIYALAL was that the property of the judgment-debtors was being sold in the other execution case, and the amount thus realised may be rateably distributed to the decree-holder KANHAIYALAL. The learned Munsif held that the execution application filed by the decree-holder, in which the relief of rateable distribution was claimed was one which could be taken as a step in aid of execution so as to save limitation, for the subsequent applications were within time under Art. 182 (5) of the Limitation Act. On appeal, the same view was upheld.