AKHOURI BAIDYANATH SAHAY Vs. KUMAR KAMAKSHYA NARAIN SINGH

JUDGEMENT

(1.) The only point for determination in this appeal is whether the application for execution filed by the decree-holder, who is respondent in this case is within time or barred by limitation. The facts of this case are shortly these: On 19 July 1926 the opposite party obtained an ex parte rent decree and although an attempt was made on behalf of the appellants to get this decree set aside they were not successful and their appeal against the order of the trial Court refusing to set aside the rent decree also failed. On 19 February 1929, the decree-holder applied for execution of the decree and on 5 September 1929, certain properties belonging to the appellant were sold in execution of this decree and ultimately upon certain objections made by some of the appellants the sale was set aside on 21st November 1929. The result was that the execution proceeding was revived and then it was discovered that Jagdeo Sahay, one of the judgment debtors had died in the meantime and Kuldeo, Sahay, another judgment-debtor, was reported to be insane.

(2.) The Court thereupon directed the decree holder-respondent to take steps to substitute the heirs of Jagdeo Sahay and to appoint a guardian for Kuldeo Sahay, the lunatic judgment-debtor. The order that was passed by the executing Court on 14 December 1929, directing the decree-holder to take the necessary steps, was in these terms: Decree-holder's L.A. files a petition for two weeks time to furnish the name of the legal heir to the deceased Jagdeo Sahai (J.D.) and also to appoint a guardian for the insane Kuldeo Sahay (J.D. No. 2). Time allowed till 23 December 1929. If he fails to take necessary steps by that date, the case will be dismissed. As a matter of fact the decree-holder failed to take the necessary steps by the date fixed by the Court and on 23 December 1929, the execution case was dismissed for default, but it may be mentioned that on that date the decree-holder had applied for further time, but the Court refused to grant time on the ground that he had been negligent almost throughout since the institution of the execution case.

(3.) Then, on 5 February 1930, the decree-holder filed his second execution petition which was promptly objected to be by the appellant on the ground that it was time-barred, inasmuch as it was made more than three years after the passing of the decree which was sought to be executed. The Court of first instance held that time against the decree holder must be taken to run from the date when the judgment-debtor's appeal from the order of the trial Court refusing to set aside the ex-parte decree was dismissed and therefore the application was within time.