SHEOGOBIND RAM Vs. MTKISHUNBANSI KUER

JUDGEMENT

(1.) The respondent obtained a decree against one Mt. Jadui on 21 June 1923. This decree was affirmed on appeal on the 31 July 1924 and on second appeal by the High Court on 22 July, 1927. On 15 July 1930 an application for execution of this decree was filed by the respondent against Mt. Jadui. The application was ordered to be registered and notice under Order 21, Rule 22, Civil P.C., was ordered to be issued on 15 July 1930, fixing 22 July, 1930 for return. This notice was received un-served with the report that the judgment debtor was dead.

(2.) On 22 July, 1930 the Court directed the decree-holder to take proper steps and fixed the time for doing so up to 29 July 1930. On 28 July 1930 the decree-holder filed an application stating that the original judgment-debtor Mt. Jadui was dead and praying to substitute Sheogobind Kahar, her grandson, in her place. This application was taken up by the Munsif on 29 July 1930 on which date he ordered that Sheogobind Kahar be substituted as prayed for. Notice of the application was then served on Sheogobind Kahar, and on receipt of this notice, he filed an objection to the execution, on the ground that the application for execution was barred by limitation. His point was that the original judgment- debtor had died some time in February 1930 and the application made on 28th July 1930 was barred by limitation.

(3.) The learned Munsif upheld this objection and found that the application was barred, on the footing that that application was an application for substitution and was consequently barred under Art. 177, Lim. Act, as it was presented more than 90 days after the death. The decree-holder thereupon went in appeal before the District Judge and the District Judge has pointed out that the provisions as regards substitution do not apply to execution proceedings and that the application of 28 July 1930 could not be held to be barred by limitation on this ground. In this view the learned District Judge was certainly right, and his decision is not challenged in this appeal by the learned advocate for the appellant, as indeed it could not be challenged having regard to the decision of the Full Bench of this Court in Hakeem Syeed Mohammad Taki V/s. Rai Fateh Bahadur Singh A.I.R. 1929 Pat. 565. It was however contended before the learned District Judge that in so far as Sheogobind Kahar was concerned the application for execution must be taken to have been filed on 28 July 1930 and was therefore barred by limitation as it was more than three years from the date of the final decree.