SITARAM NANASA Vs. CHUNNILALSA BHAGCHANDSA KALAL

JUDGEMENT

(1.) THE order in this appeal will also govern the decision in Misc. Appeal No. 322 of 1942. These two appeals are connected and arise out of two orders passed in execution. The question involved in these appeals is common. It is one of limitation. The point is whether the execution application, dated 2nd January 1942, is barred by limitation. The decision of the question depends on the interpretation of Section 48, Civil P.C., and Sections 15 and 29, Limitation Act. In order to appreciate the point involved it is necessary to set out a few facts. On 30th November 1928, Chunnilalsa, the respondent, obtained a final decree for partition in Civil Suit No. 176 of 1910 in the Court of the District Judge, Nimar. Under the decree, the plaintiff was entitled to a one-fourth share. His share was separately allotted. The shares of the defendants were kept joint. The decree was a joint decree against the defendants. The decree-holder applied for execution of the decree from time to time. One of such applications was made on 23rd March 1939 which was within three years of the previous application. One of the reliefs claimed was for possession of the share of the decree-holder. It was stated in the application that the list will be filed on the date of verification. No such list was however filed. Ramlal, one of the judgment-debtors, applied to the Debt Belief Court, Burhanpur, for determination of his debt. The Debt Relief Court sent an intimation to the civil Court about the admission of the application. The property of the judgment-debtors was to be sold on 20th March 1940. On receipt of the intimation from the Debt Relief Court, the Court of the First Subordinate Judge, First Class, by the order, dated 19th March 1940, stayed the sale till the disposal of Ramlal's application in the Debt Belief Court at Burhanpur. The sale warrant and the proclamation were recalled from the Nazarat. On 29th March 1940, the executing Court passed the following order: Decree-holder Chunnilal in person. Sale has been stayed as the judgment-debtor applied in the Debt Belief Court at Burhanpur. Execution proceedings are therefore stayed till the decision of judgment-debtor's application in Debt Belief Court at Burhanpur.

(2.) ON 30th June 1940, the Debt Relief Court, in accordance with the agreement of the debtor and the creditors, passed an order whereby the claims of the creditors were payable in certain number of instalments. Among the creditors whose claims were thus settled was Chunnilalsa, the respondent decree-holder. On receipt of intimation from the Debt Relief Court regarding the settlement of the debt of Ramlal, the respondent expressed a desire to proceed against the other judgment-debtors. This was allowed. The Court directed issue of a sale warrant and proclamation. The sale was fixed for 17th November 1941. The sale was held on the date fixed. An application was made to set aside the sale. The objection was dismissed by the order, dated 20th December 1941. The sale was confirmed. The Court directed payment of the amount in deposit to the decree-holder and dismissed the execution as partially satisfied. On 2nd January 1942, the decree-holder filed a fresh application and claimed possession of the fields and houses. The decree-holder was put in possession of the fields, except field No. 499/2. After he was put in possession of the fields in accordance with the terms of the decree, two objections were filed?one by Sitaram, Chhaganlal and Ratanlal, judgment-debtors-appellants in Misc. Appeal No. 274 of 1942. This was an application under Section 47, Civil P.C., The other objection was filed by Ramlal, the appellant in Misc. Appeal No. 322 of 1942, under Order 21, Rule 100. Their objection was that the execution application filed on 2nd January 1942 was barred by limitation as it was filed more than 2 years after the date of the decree. These objections have been disallowed. The persons aggrieved have filed these two appeals--Misc. Appeal No. 274 of 1942 and Misc. Appeal NO. 322 of 1942.

(3.) AS regards the first point the orders which have been passed by the executing Court make it clear that there was a stay of execution of the decree and it was not restricted in respect of the execution of the decree against Ramlal, or in respect of the money recoverable under the decree of 19th March 1940. The, sale which was fixed for 20th March 1940, was stayed. On 29th March 1940, execution proceedings were stayed till the decision of the judgment-debtor's application in the Debt Relief Court at Burhanpur. Subsequent order "sheets show that the executing Court adjourned the case as the proceedings before the Debt Relief Court were not decided. On 25th September 1941, after the receipt of intimation the decree-holder was permitted to execute the decree. A perusal of the order sheets in the case will make it clear that the execution of the decree was stayed. It was not restricted as regards the judgment-debtor Ramlal or in respect of the money recoverable under the decree. The stay was in respect of the decree and it prevented the decreee-holder from executing the decree against other judgment-debtors also and from recovering possession of the property. It is not necessary that the order should be a valid one or that it should be proper.