MUSTAFA KHAN Vs. RAM BHAROSEY

JUDGEMENT

(1.) THIS is an application in revision against an order passed by the Judge of Small Cause Court of Cawnpore. The learned Judge has held that the execution application filed by the applicant was barred by time. The opposite party - judgment-debtor - was admittedly an agriculturist within the meaning of the term as defined in Section 2, Temporary Postponement of Execution of Decrees Act (U. P. Act 10 of 1937). Prom the materials on the record it is clear that he was an agriculturist paying more than Rs. 250 as land revenue, per annum. He was, thus, an agriculturist within the meaning of Section 3 (2), Temporary Postponement of Execution of Decrees Act of 1937. The decree in question was passed on 30th September 1937. The application for execution was filed on 29 January 1941, that is, more than three years after the decree. Obviously, therefore, the application was barred by time unless limitation is saved by Section 5 of the Act referred to above. THIS Act came into force on 1 January 1938. It remained in force by reason of the notification by the Provincial Government in the gazette from time to time till 1 January 1941 when it was repealed by the U.P. Debt Redemption Act (Act 13 of 1940). If Section 5, Temporary Postponement of Execution of Decrees Act, 1937, applies to this case, the application would clearly be within time. It was argued on behalf of the opposite party that Section 5 of this Act was not applicable as no application under Section 3 (2) was made by the judgment-debtor. THIS contention found favour with the learned Judge of the Court below and he dismissed the application. I have heard the learned Counsel for the parties and in my judgment the view taken by the learned Judge is not correct. Section 5 of the aforesaid Act provides that in computing the period of limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for... (b) the execution of such decree as is referred to in Section 3 and not covered by Section 6, the period during which this Act shall remain in force shall be excluded. The expression "such decree as is referred to in Section 3" is quite general and therefore it follows that all decrees which come within the purview of Section 3 are affected by the provisions of Section 5, in other words, the decree-holder will be entitled to the benefit of the provisions of Section 5. The provisions of Section 3, Sub-clause (2) which speak of an application by the judgment-debtor to the execution Court for stay of execution and the conditions which are laid down therein, were obviously meant to be applicable to execution proceedings which were pending at the time when the Temporary Postponement of Execution of Decrees Act, 1937, came into force. To my mind they are not applicable to a case like the present where the application for execution is made after the repeal of the Act. My attention has been drawn to the case in Bhagwat Pratab Singh V/s. Babuain Janakraj Kuer ( 43) 30 A.I.R. 1943 Oudh 385 wherein a learned Judge of the Oudh Chief Court has held that under Section 5 the period during which the Act remains in force must be excluded in the execution of such decrees as are referred to in Section 3 whether the case falls under Sub-section (1) or Sub-section (2) of Section 3 and whether an order of stay has been passed under Section 3, Sub-section (2) or not. I find myself in full agreement with the view taken in that ease. I find that in another case namely, C.R. No. 87 of 1943 of this Court which was decided on 10 January 1944, a learned Judge of this Court has taken the same view about the scope of Section 5 of the Act. I hold, therefore, that the application for execution was within time. The result is that this application in revision is allowed with costs, the order of the Court below is set aside and the case is sent back to the Court below for proceeding according to law. The costs in the Court below shall abide the event.