RAM LAKHAN SINGH Vs. LALA MEWA LAL

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings. A decree absolute for sale of landed property was passed on the 23 of September 1910. The decree-holder applied for execution on the 26 of April 1911. That was infructuous. A second application was made on the 15 of April 1914. That application was dismissed with costs, because the decree-holder failed to comply with certain orders which the Court had made. Another application was made on 1 4 of September 1914 for sale. As some of the property was ancestral, the Court ordered the case to be sent to the Collector for sale. THIS was done on the 18 of September 1914. Before the sale was completed, the Civil Court, on the 14 of May 1915, passed an order staying the sale. Thereupon, on the 24 of May, the Collector sent the record back to the Civil Court which, on the 25 May 1915, passed an order to the effect that the proceedings be entered on the register of decided cases and placed in the record room.

(2.) THIS order was passed behind the back of the decree-holder. Finally an application out of which this appeal arises was made on the 12 December 1917. Both Courts have held that this application was within time. It was argued before us that it was not, and the argument was based on what, we think, was merely a slip of the pen in the judgment of the learned District Judge. He twice in his judgment mentions the penultimate application as being that made on the 14 of April 1914. We think it is quite clear that he meant the 14 of September 1914. If the penultimate application had been that of the 14 of April 1914, then, in our opinion, the argument of the appellant would have been unanswerable. THIS application was made certainly more than three years after that date, but that was not the application on which the decree-holder relied as saving limitation. The learned District Judge has quoted the order passed which, he says, was on the application of, the 14 of April 1914. As a matter of fact it was passed on the application of the 14 of September 1914, Reliance has been placed by the respondents on the case of Yaqub Ali V/s. Durga Prasad 30 Ind. Cas. 877 : 37 A. 518 : 13 A.L.J. 760. That was a much stronger case than this. The facts were somewhat similar. The record had been sent in that case also to the Collector and had been sent back. Thereupon the Court asked the decree-holder to take certain steps and on failure of his doing so, the application for execution was struck off and the file was sent to the record room. There it was held that a further application, though in the form of a new application for execution, was really a continuance of the older application. We cannot distinguish that case from the present. In the present case the execution proceedings were consigned to the record room behind the back, of the decree-holder and without any default on his part and without really deciding it. It seems to us, in this view of the case that the learned District Judge was right and we, therefore, dismiss the appeal with costs, including in this Court fees on the higher scale.