SUDHANSU SEKHAR SINGH DEO Vs. BALABHADRA MAHAPATRA

JUDGEMENT

(1.) This is a decree-holder's appeal from the orders passed in execution proceedings by the learned Subordinate Judge of Sambalpur upholding the judgment-debtor's contention that the decree Under execution was barred by limitation. The facts culminating in this appeal are as follows: The appellant obtained a decree against the judgment-debtor on 19 November 1923, for the sum "of-five thousand nine hundred odd rupees. Execution was taken out the same month and in the same year, which was dismissed on part satisfaction on 2 May, 1925. A second execution, being Execution case No. 50 of 1925, ended on 20 March 1926, with an adjustment between the parties to the effect that the judgment-debtor would pay ten rupees per month in instalments towards the satisfaction of the decree. But, after paying Rs. 70 only, the judgment-debtor made a default with effect from 21 November 1926. The result was the third execution case, No. 32 of 1927, in which the decree-holder sought that the judgment-debtor should be arrested and detained in civil prison for non-payment of the remaining sum out of the decretal dues. But the Court granted a further indulgence to the judgment-debtor by ordering that he should pay the decretal sum by monthly instalments of as. 15 on or before the 15 of every month, in default of any instalment thereby fixed the judgment-debtor being liable to be sent to civil prison. This time, the judgment-debtor was more diligent in carrying out the orders of the Court, and continued paying the 15 Rupees per month, as aforesaid, until 14 July 1937, all these monthly deposits being made in Execution case No. 32 of 1927. On 15 September 1928, the execution case was dismissed on part satisfaction. Ap-parently, this dismissal was a mere routine dismissal, being neither for the default of the decree-holder nor on termination of the execution proceedings. On 4 August 1937, the decree-holder obtained an order from the Court, permitting him to withdraw the amounts in deposit till 14th July 1937. On 19 December 1939, the fourth execution case was started in the sense that it was numbered as Execution case No. 89 of 1939, though, in substance, it was an application for continuing the old execution proceedings, that is to say, the Execution Case No. 32 of 1927. In that application, the decree- holder recited all the events, which had happened until the date of the application, and, ultimately, prayed that the judgment-debtor be arrested in terms of the Court's order dated 5 July 1928, in Miscellaneous case No. 18 of 1928 arising out of Execution case No. 32 of 19 27. When this application was put up before the Court, the office put up a note that apparently the application for execution was barred by limitation, and the decree-holder's pleader was called upon to explain as to how the application was within time. It appears, then, that on 3 January 1940, the decree-holder's pleader made an application in which he recited the history of the previous execution, and then ended the application by the following prayer: The decree-holder, therefore, prays that your honour would be pleased to pass orders continuing the Execution Case No. 32 of 1927.

(2.) On this application, the Court passed an order on 15 January 1940, holding that, prima facie, the application was not time-barred, and that notice under Order 21, Rule 22, Civil P. C, should issue upon the judgment, debtor to show cause why execution should not proceed against him. Now, we come to a stage which has given the most trouble to the parties and to the Court below and to this Court. On 18 January 1940, the decree-holder made a long application, reciting the history of the previous executions and ending with the orders passed in Execution Case No. 32 of 1927. In this application the prayer was as follows: The decree-holder, therefore, prays that your honour would be pleased to call for Execution Case No. l52 of 1927 of this Court and to pass orders directing the re-arrest and detention of judgment-debtor in civil prison, in default to pay up Rs. 2267-5-6.

(3.) Upon that application, the Court passed the following order on 29 January 1940. "The petition is disallowed." It is this order which has been construed by the Court below as having decided that the application for execution, dated 18th January 1940, was not maintainable as being barred by time. On the other hand, it has been contended by Mr. R. K. Ray appearing on behalf of the appellant that this was an order passed on an interlocutory ap-plication for the arrest of the judgment-debtor only.