GULAM ALI Vs. RAJKUMAR

JUDGEMENT

(1.) GRILLE , A.J.C. 1. A decree-holder made an application to execute a decree passed on 13th November 1925 on 8th November 1928. On that date he was directed by the Clerk of the Court to appear on 14th November 1928, before the Court executing the decree. The Court's order-sheet for that date runs: D.H. absent. Application is reported to be incorrect, It is rejected.

(2.) A subsequent application was made on 16th November 1928 and the question arose whether the application of 8th November 1928, saved limitation. The Subordinate Judge, Khandwa, held that it did and the execution proceeded. In appeal to the District Judge, the judgment-debtors, relying on the decision in Meghraj v. Abdul Majid Khan AIR 1921 Nag 28, contended that the application of 8th November 1928 must be held not to have been made at all. The learned District Judge distinguished the facts in the case before him from those in Meghraj v. Abdul Majid Khan AIR 1921 Nag 28, on the ground that the irregularity, which consisted of the omission to include the costs of the appeal in the amount to be recovered was a mere abandonment of a part of the claim and on a very different footing from an excessive claim which was made in Meghraj v. Abdul Majid Khan AIR 1921 Nag 28. Relying on a decision of the Calcutta High Court Pitambar Jana v. Damodar Guchait AIR 1926 Cal 1077, he dismissed the appeal. The Judgment-debtors preferred a second appeal to this Court alleging that Meghraj v. Abdul Majid Khan AIR 1921 Nag 28 should have been followed and not the wider interpretation of the Calcutta High Court. The distinction drawn by the learned District Judge was not a valid one in that it is laid down by Hallifax, A.J.C., in Meghraj v. Abdul Majid Khan AIR 1921 Nag 28, that if the presentation of an application for execution however nearly correct, is rejected as incorrect, by the Court, whether an opportunity has been given to amend it or no, there is no application in accordance with law. Accordingly the appeal should have succeeded. It was doubted however in this Court whether Meghraj v. Abdul Majid Khan AIR 1921 Nag 28 had been correctly decided and the question was referred to a Full Bench. The result of the reference is a decision that the proposition of law in question had been too widely stated in Meghraj v. Abdul Majid Khan AIR 1921 Nag 28 and it is held that when the order of rejection contains an express or implied finding that the application is not in accordance with law that order is final, unless of course, it is appealed against and such an application would be ineffectual to save limitation; but where there is no such finding, it is the duty of the Court to consider the application itself to determine whether it was in accordance with law or not. This has been crystallised in the opinion of Niyogi, A.J.C. practically in the terms of the decision in Pitambar Jana v. Damodar Guchait AIR 1926 Cal 1077 in the following words: The rule, correctly stated, would be: If an application for execution is rejected as being not in accordance with law for the reason that it was so defective in material particulars that the Court could not, on the basis of that application exercise its power of execution, that application must be regarded as not having been presented at all for purposes of Article 182, Limitation Act.

(3.) THE appeal fails and is dismissed with costs. I fix pleader's fees at Rs. 50.