KIRANSHASHI DEBI Vs. CHANDRIKA PROSAD SINGH

JUDGEMENT

(1.) This is an appeal by the judgment-debtors against an order of the Subordinate Judge ordering execution of a decree against them. It appears that this decree was passed in the Court of the Subordinate Judge on 16th February 1910. Before that, the judgment-debtors had obtained a decree also for money in the Munsif s Court for presumably a lesser amount. In execution of that decree, the judgment-debtors, instead of applying as they should have done for a set-off, attached the present decree under Order XXI, Rule 53, Code of Civil Procedure. The decree being passed by a different Court from that in which the judgment- debtors had obtained their decree, the attachment must have been made under Clause (1)(b) of that rule, that is to say, by a notice by the Court which passed the decree sought to be executed requesting the other Court to stay the execution of the decree unless and until the Court which passed the decree sought to be executed cancelled the notice or the decree- holder or the judgment-debtor applied to the Court receiving such notice to execute its own decree. The effect of that attachment would be to stay the execution of this decree unless and until these events happened. Now, in this case those events never did happen and the execution case lasted until 26th July 1910, when it was dismissed for default. The learned Subordinate Judge has held that this period must be excluded under Section 15 of the Limitation Act; and, if the period be excluded, admittedly the present application for execution of this decree which was made on 18th April 1913 would be in time.

(2.) We are of opinion that the Subordinate Judge was right in the conclusion to which he came. The effect of the attachment was to stay the execution. Is that a stay of the execution by an order of Court as stated in Section 15 of the Act? It is argued for the appellants that that order must be made by the Court which passed the decree. In such a case of attachment there is really no necessity for the Court to make any separate order. The stay operates automatically on the receipt of the notice from the Court which attaches the decree. We think that it must be regarded as a stay by order of Court.

(3.) So far as the merits of the case are concerned, there are no merits whatever in favour of the appellants. What, of course, should have been done in this case was to set off the decrees of these two parties the one against the other.