RAM SARUP Vs. DASRATH TEWARI

JUDGEMENT

(1.) This appeal arises out of proceedings taken in execution of a decree under Section 230 of the Code of Civil Procedure of 1882. The decree is that the 15th of September 1893, and was a decree for possession of immoveable property and for mesne profits. On the 3rd of June 1905, the decree-holder applied for execution of his decree. On the 27th of September 1905, the application was struck off by the Court on its own motion. Consequently on this an application for the re-admission of the application was made on the 30th of August 1906 and on the 15th of September 1906, the application was re-admitted. On the 13th of November 1907, the application was again struck off on the ground that insufficient process-fee had been deposited by the decree-holder. He, on the 3rd of December 1907, applied to the Court for restoration of the application setting out the circumstances under which he failed to pay the requisite amount of process-fee. The Court was satisfied with his explanation and accordingly on the 14th of December 1907, restored the application to the file. This application, it is to be noted, was not in the nature of a fresh application for execution. It was simply an application for restoration of the previous application of 1905, and rightly or wrongly the Court reviewed its previous order and passed the order for restoration. In proceedings in execution taken on the application of the 3rd of June 1905, which had been so restored, objection was taken by the judgment-debtor that the proceedings were barred by limitation, the application of the 3rd of December 1907 having been made after the lapse of 12 years from the date of the decree. The Court of first instance held that limitation did not bar the proceedings but the decision of this Court was reversed on appeal and the Appellate Court s decree was affirmed by a learned Judge of this Court in second appeal. Hence this appeal under the Letters Patent.

(2.) They contention on behalf of the appellants is that the order of the 14th of December 1907 had the effect of restoring the prior application of the 3rd of June 1905 and was not a fresh application for execution either in form or substance. It appears to me that this contention is well-founded. It was open to the Court to review* the order which it had passed striking off the application for non-payment of a sufficient process-fee; it was open to the Court to reinstate this application. I am unable to find any substantial difference in the facts of this case from those which were the subject of consideration by a Full; Bench of this Court in the case of Rahim Ali Khan v. Phul Chand 18 A.. 432. In that case it was held that the subsequent application to execute the same decree mentioned in Section 230 of the Code of Civil Procedure means a substantive application for execution in the form prescribed by Section 235 of the Code. Hence where an "application for execution in accordance with Section 235 of the Code has been made within the period of limitation prescribed by Section 230 and has been granted, that is execution has been ordered in accordance with the prayer of the decree-holder s application, the right of the decree-holder to obtain execution will not necessarily be defeated if by reason of objections on the part of the judgment-debtor, or action taken by the Court, or other cause for which the decree-holder is not responsible, final completion of the proceedings in execution initiated by the application under Section 235 cannot be obtained within the period limited by Section 230. In the judgment of my brother Knox I find this passage in which I entirely concur. Referring to Section 235 of the Code he observes,--That section lays down in great detail the form which an application to execute a decree must take, the matters which it must contain, and the mode in which the Court is asked to grant its assistance. Section 245 requires that such application shall on receipt be examined and, if found in accordance with the law, admitted on a register. The Court is after such admission to order execution of the decree according to the nature of the application. So long as that order or any further order according to the nature of the application is in progress; provided it be an order which has been evolved from the application so registered. I would hold that the application for execution is in progress. If from some obstacle imposed by the judgment-debtor, or by the Court, that obstacle not being a final determination of the application, the progress of the order, or subsequent orders, to maturity is delayed and such obstacle is removed by an application of the decree-holder, I do not consider such latter application, unless it expressly take the form of a new application under Section 235 and be registered as a subsequent application, any more than I would consider a petition by a plaintiff in the course of a suit asking the Court to re- consider an order to be a fresh plaint."

(3.) It is contended on behalf of the respondent that in this case the striking off of the application of the 13th of November 1907 was due to the default, of the, decree-holder in not paying sufficient process-fee.. Whether or hot he was in fault in this respect, the Court which passed, the order for restoration had all the facts before it and came to the conclusion that there was justifying cause for re- admitting the execution proceedings. We ought, I think, in view of this order, to regard the temporary default on the part of the decree-holder as satisfactorily explained and condoned.