BANWARI NARAIN TEWARY Vs. RAMHARI NARAIN TEWARI

JUDGEMENT

(1.) This is an appeal by the decree-holder against a decision of the learned Subordinate Judge of Ranchi, allowing an objection under Section 47, Civil P.C., in execution proceedings, and holding that execution of the decree in question was barred by limitation under Art. 182, Limitation Act.

(2.) In order that the point that arises may be understood it is necessary to set out a number of dates. In the year 1927 the appellant instituted a partition suit, the subsequent relevant dates being as follows: 5-1-1929--A preliminary decree was passed on compromise. 9-11-1929--A dispute arose between the parties with regard to a question whether certain lands were raiyati or bakasht. 8-3-1930--A declaratory title suit was filed by the appellant for determining this question. 25-3-1930--In that suit an order was passed, staying further proceedings in the partition suit. 17-5-1930--The trial Court in the partition suit passed an order recording that the proceedings had been stayed. 31-3-1931--The declaratory suit was decreed, and it was held therein that the lands were raiyati lands. The same day the stay order was vacated. 2-5-1931--A final decree was passed in the partition suit. 8-3-1934--An appeal against the decision in the title suit was decreed by the District Judge, who held that the lands in question were bahasht, and so liable to partition. 10-12-1934--The plaintiff and some of the defendants in the partition suit filed a petition, praying that the drawing up of the final decree might be stayed. 26-2-1935--The Court passed order No. 76, to which I shall have to refer later. It was to the following effect: "No final decree has been prepared yet, as none of the parties put in judicial stamp for its preparation. The present petition is only in the nature of information to the Court in case any other party applies for preparation of a final decree. The Court cannot remain on watch for such a purpose. Let the petition be kept on the record, and no orders will be passed on it at present. The petitioner may revive the petition if there be any petition filed by any other party for preparation of a final decree in this suit." 2-2-1937--The High Court in second appeal reversed the decision of the District Judge in the title suit, and restored the decision of the Subordinate Judge. 10-5-1938--The plaintiff applied for drawing up the final decree in the partition suit. 21-11-1938--The Court called upon him to file the non-judicial stamp necessary under Art. 48, Schedule 1, Stamp Act. 12-12-1938--The stamp was filed. 7-1-1939--The final decree was signed and sealed, bearing, of course,the date 2/5/31 when it was originally passed. 20-2-1940--The present execution case was filed.

(3.) The judgment-debtors took an objection that execution of the decree was barred, because under Order 20, Rule 7 the date of the decree was the date of the judgment, 2 May, 1931; limitation would run from that date and would be three years under Art. 182, Limitation Act. The first application for execution was filed long after the expiry of that period. The learned Subordinate Judge has accepted this contention.