GOVIND PRASAD Vs. PAWANKUMAR

JUDGEMENT

(1.) This is an appeal from an order of the High Court of Judicature at Nagpur dated 11 November 1938, confirming an order of the Court of the Additional District Judge, Raipur, dated 20 August 1936. The appeal arises out of an execution proceeding, and the question for determination is whether the application made by the decree-holder for the execution of a decree which he had obtained against the appellants before the Board-the judgment-debtors-is barred by time. Both Courts in India have held that it is not barred. The material facts are as follows : One Madanlal Sao, the father of the respondent, obtained a decree against the appellants on 1 February 1932, in the Court of the Additional District Judge, Raipur, for Rupees 32,185-5-3 with interest and costs. Before judgment, he had the immovable properties of the appellants attached under the Civil P. C.. On 27 June 1932, which was within the period of three years prescribed by the Limitation Act, Madanlal Sao applied for execution of his decree by the sale of the villages which had already been attached. On 5 July, the Court registered the application, making the following order: Application is corrected. It is reported to be correct. It be registered. In this case the judgment- debtor's seven villages have been attached by the decree-holder before judgment, and he prays for the issue of 'C' form to the Collector. The decree-holder should file copies of mutation registers and decrees by 13 August 1932, and 'C' form be prepared and put up on 20 August 1932.

(2.) The order to obtain copies of the mutation registers was apparently passed under O.21, R.14, Civil PC, which provides that, . . . where an application is made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to produce a certified extract from the register of such office specifying the persons registered as proprietors of, or as possessing any transferable interest in, the land or its revenue or as liable to pay revenue for the land and the shares of the registered proprietors. The time for filing these copies was extended from time to time till 5 November 1932, when the Court passed the following order : Decree-holder absent. Time 4-8 p.m. No copied filed as it is understood that the judgment- debtor has been adjudged insolvent. Dismissed for default. While the execution was pending, on 5 July 1932, the Additional Subordinate Judge, Raipur, adjudged the appellants insolvents: on 19 August 1932, Madanlal, the decree-holder, put in a claim in the Insolvency Court supported by an affidavit giving the particulars of his debt as required by S.49, Provincial Insolvency Act, which is as follows: Section 49 (1). A debt may be proved under the Act by delivering or sending by post in a registered letter to the Court an affidavit verifying, the debt; (2) the affidavit shall contain or refer to a statement of account showing the particulars of debt and shall specify the vouchers (if any) by which the same can be substantiated. The Court may at any time call for the production of the vouchers.

(3.) On the 20 August, a list of debts was prepared in which Madanlal's name was entered as a creditor. On 10 September 1932, the Additional Subordinate Judge passed the following order : ... No other debts have been proved. Haji Walli Mohamad, Madan Lal Sao, Ambalal Ranchason and Kampta Prasad are suspended from the Schedule, since the receiver alleges that they are not fully binding on him; they must therefore prove on what grounds they got their decrees. On 28 February 1934, the adjudication of the insolvents was set aside by the appellate Court. On 23 July 1935. the decree-holder, who has since died and is now represented by his son the respondent, presented the second application for the execution of his decree, which has given rise to this appeal. Inasmuch as the above application was not filed within three years of the decree, as required by the Limitation Act, it was prima facie time-barred: but the respondent claimed exemption from limitation on two grounds, either of which if accepted would suffice to secure him such exemption. These grounds, and the contentions of the appellants with reference to each, may be summarised as follows : (1) That the previous application dated 27 June 1932, was a step in aid of execution "made in accordance with law" within the meaning of Art. 182 (5), col. 3, Limitation Act-Act 9 of 1908, as amended by Act 9 of 1927-and the period of three years began to run from 5 November the date of the "final order thereon." Art. 182 (5) prescribes the time for the execution of a decree or order of any civil Court not provided for by Art. 183 or by.S.48, Civil PC, 1908- namely, three years (where the application next hereinafter has been made) from the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take a step in aid of execution of the decree or order. To this, the appellants replied that since the decree- holder had failed to furnish copies of the mutation register of the attached villages as required by the Court under O.21, R.14, Civil PC, the application was not one "made in accordance with law," and it did not therefore give him a fresh starting point for the limitation period of three years. (2) That, inasmuch as the adjudication of the insolvents had been set aside on appeal, he was entitled under S.78 (2), Provincial Insolvency Act (Act 5 of 1920), in computing the period of limitation prescribed for his application for execution, to exclude the period from the date of the order of adjudication to the date when that order was set aside by the appellate Court. Section 78 (2), Provincial Insolvency Act, so far as it is material, is in the following terms : Where an order of adjudication has been annulled under this Act, in computing the period of limitation prescribed for any suit or application for the execution of a decree .... which might have been brought or made but for the making of an order of adjudication under this Act, the period from the date of the order of adjudication to the date of the order of annulment shall be excluded.