PARSHOTAM SARAN Vs. NARAIN DAS

JUDGEMENT

(1.) THIS is a decree-holder's appeal from an order passed by the learned Subordinate Judge of Moradabad, upholding that of the Munsif, dismissing the appellant's application for execution of a decree as barred by limitation. The material dates are noted below. A final decree for sale of mortgaged property was passed on 17 July 1926. An application for execution of that decree was made in 1927. A proclamation for sale was issued, and the record was sent to the Collector for sale of the property, which is revenue paying property. On the date fixed for sale no bidders were present. The Collector returned the file to the Civil Court, intimating that the property could not be sold. The application for execution was dismissed for want of prosecution. An application was made on 21 December 1927, praying that the application previously dismissed for want of prosecution be restored. THIS application was granted and the previous application was restored. It was however dismissed a second time for want of prosecution on 25 April 1928. Another application was made on 10 May 1928. It has been construed by the lower Courts as an application asking merely for "revival" of the execution proceedings, and therefore not an application for execution of a decree. It was dismissed on 14 May 1928. The last application for execution was made on 14th May 1931, and the question is whether it is barred by limitation. It should be noticed that, if the application dated 10 May 1921, saves limitation, the last application, dated 14 May 1931, must be considered to be within time; but the lower Courts held that the application of 10 May 1928, was not an application for execution and that it did not save limitation. They seam to imply that it was neither a fresh application for execution nor an application to take a step-in-aid of execution of the decree. Accordingly, the last application, being more than three years after the preceding application for execution, was treated as barred by time.

(2.) I have carefully examined the application dated 10 May 1928, and am satisfied that the lower Courts were wrong in holding that it was not an application for execution of decree. It is in a tabular form and sots forth all the particulars required by Order 21, Rule 11, Civil P.C. In 10 column, in which the decree- holder is to state the manner in which ho seeks the assistance of the Court, it was stated that a sale proclamation had been previously issued, but the record was sent back by the Collector, as there were no bidders, that the previous application was "accidentally" dismissed and that the entire expenses of sale are in deposit. It was prayed that the decree might be executed and the property sold by "revival" of the previous proceedings. It is perfectly clear that the decree-holder prayed for execution of the decree by sale of the mortgaged property. He did not however desire that; the proceedings, which had already taken place, should be again taken. He probably wished to avoid a fresh proclamation being issued or the expenses of sale being demanded a second time. The Court should have issued the process of execution in the usual way, if the decree-holder's prayer for revival of earlier proceedings was not one that could be granted. In my opinion, the application dated 10 May 1928, was a fresh application for execution, and consequently the last application, being within three years from 14 May 1928, which is the date of the order passed on the application of 10 May 1928, is within limitation. This appeal is allowed with costs, land the Munsif is directed to dispose of the appellant's application, dated 14 May 1931, according to law.