LALIT MOHAN ROY Vs. SARAT CHANDRA SAHA

JUDGEMENT

(1.) The question raised by this appeal relates to the finality or otherwise of certain objections made in the course of execution. It is necessary to state the facts of the case in order to appreciate the contention raised by the appellants. It appears that a suit for dissolution of partnership was pending in the Court of the Subordinate Judge (Second Court) of Mymensingh and a receiver was appointed in that suit. The receiver obtained a decree against the present appellants judgment-debtors in January 1921, for debts due to the firm in respect of which the dissolution proceedings have been started. The receiver made several attempts to have the decree satisfied by execution. His last application for execution was filed on 7 July 1926 and was dismissed on 3 September the same year. On 2 April, 1929 this decree which is sought to be executed was allotted to the present respondent. The respondent filed an application for execution on 21 May 1930 alleging payment of certain interest in Sravan 1336 and certain other subsequent payments in Pous 1336 and later. That application for execution was registered subject to the case of limitation.

(2.) The notice under Order 21, Rule 22, Civil P.C., was ultimately served on 10 August 1930 and there is an order in the order sheet of that date showing that the notice was served and that the service was proved. The present appellant did not appear on that date and the Court directed an attachment under Order 21, Rule 54 of the Code. On 3 December 1930 a farther notice was issued under Order 21, Rule 66 of the Code for settlement of price to be mentioned in the sale proclamation, and this notice was served on 12 December 1930. On 12th December 1930 the present appellant appeared and he obtained an adjournment to enable him to put in his objection. On the 20 idem the present appellant filed an objection. He denied in the objection payments alleged by the decree-holder and he pleaded limitation. The Subordinate Judge who dealt with the matter in the first instance upheld this objection of the judgment debtor and dismissed the execution case on the ground that it was barred by limitation.

(3.) Against this order an appeal was taken to the Court of the District Judge of Mymensingh and the learned District Judge was of opinion that the execution was in effect time barred when the present application for execution was filed. But he was of opinion that having regard to the order of the Court dated 22 August, 1930 directing the issue of attachment under Order 21, Rule 54 of the Code, it was not open to the present appellant to raise the contention at a subsequent stage of the execution proceedings that the application was not barred by the statute of limitation. In this view he set aside the order of the Munsif and directed that further proceedings in execution should be allowed.