HARNARAIN Vs. DAYABHAI HIRA CHAND

JUDGEMENT

(1.) This appeal arises out of a proceeding in execution of a money decree. The decree was obtained on 7 November 1924, by the respondent against the firm of Ohunilal Madan Lal in Original Suit-No. 4849 of 1922 of the Bombay High Court. On 24 September 1925, the decree-holder applied for execution in the Bombay High Court praying for arrest of Madan The decree was passed on 7 November 1924, and the present execution was filed on 19 February 1937, that is to say, beyond 12 years.

(2.) The learned Subordinate Judge has held that the orders passed in the previous execution proceedings in 1925, and 1936, operate as "revivor" within the meaning of Art. 183. The term "revivor" has not been anywhere defined or explain-ed in the Limitation Act, but judicial decisions have laid down that to constitute a revivor of the decree there must be expressly or by implication a determination that the decree is still capable of execution and the decree-holder is entitled to enforce it. In other words, there must be an order Lal Srinivas, one of the partners in the firm of Ohunilal Madan Lal. On that petition an order was passed by the Court on 14 October 1925, for the arrest of Madan Lal Srinivas. The execution case, however, proved infructuous. In 1936, the decree- holder got the decree transferred to the Court of the Subordinate Judge of Motihari and filed an application in that Court on 23 April 1936, for execution of the decree against Har Narayan ChuniLal, alleged to be one of the partners of the firm Chunilal Madan Lal. The Execution Case No. 120 of 1936, which was started on that application, was dismissed for default on 9-2-1937.

(3.) The present application for execution was filed on 19 February 1937, in the same Court against the same judgment-debtor, namely Har Narayan Chuni Lal. The latter opposed the application mainly on the ground that it was barred by limitation. This objection has been overruled and the execution case has been ordered to proceed. Hence this appeal by the judgment-debtor. Har Narayan Chuni Lal. The only question raised in this appeal is that of limitation. The decree under execution being passed by the Bombay High Court on its original side, the case will be governed by Art. 183, Limitation Act. That Art. runs as follows: for execution which amounts to a decision I that the decree is capable of execution. It will be enough to refer here to the Full Bench decision of the Calcutta High Court in Chutterput Singh V/s. Sait Sumari Mal AIR (1916) Cal 488 which was approved by the Privy Council in Banku Behari <JGN>Chatterji</JGN> V/s. Naraindas Dutt .