KALANAND SINGH Vs. CHANDRA KISHORE JHA

JUDGEMENT

(1.) The question which arises in this second appeal is not altogether free from difficulty but after giving it our mature consideration and consulting all the authorities bearing on the equitable question which arises, we can have no doubt how it should be decided. It appears that the decree-holder obtained a decree for rent against one Behari Jha on the 8 February 1905. He applied for execution of that decree for the first time on the 8 February 1908. Notice under Section 248 was issued and on the 3 April the peon reported that the judgment-debtor was dead. On the 21 April the decree-holder applied for substitution of the heirs and notice was accordingly issued on them under Section 248, Civil Procedure Code. On the 3 of July 1908, they filed the present objection contending that the execution was barred by limitation, more than three years having elapsed between the date of the decree and the application to execute as against them on the 21 April 1908.

(2.) The decree being one for rent and below Rs. 500, no second period of limitation is allowed under Art. 6, Schedule III, Bengal Tenancy Act. This being so, the question arises whether the substitution made on the 21 April 1908 can be considered as a continuation of the application for execution of the 8 February 1908.

(3.) The rulings that have laid down that an application for execution against a person subsequently found to be dead is a step-maid of execution and, therefore, gives a fresh period of limitation under Art. 179 of the Limitation Act do not concern us in this case in any way. Under the ordinary law, the statute itself gives the decree-holder a further opportunity to take out execution and so no further equities arise in his favour.