SAHU NANDLAL SARAN Vs. SAHU DHARAM KIRTI SARAN

JUDGEMENT

(1.) This an appeal from an order by the Subordinate Judge of Moradabad in execution proceedings. The decree which was sought to be executed was passed on the basis of an award on 18 May 1909. The present application for execution was filed on 17 November 1924 In the lower Court the judgment-debtor, Sahu Nandlal Saran objected to the execution of the decree on the following grounds: 1. That twelve years has expired since the date of the decree sought to be executed, so the application was barred under the provisions of Section 48(a), Civil P.C.; (2) that if for any reason there was no such bar then the application was barred by the period of three years fixed under Art. 182(2), Lim. Act, because no step-in- aid of execution of the particular decree had been taken with three years of 17th November 1924; (3) that the decree was not capable of execution on the ground that there was no operative order in the decree for the recovery of the sum claimed by the decree-holder.

(2.) The lower Court held that there was no bar under Section 48 because the period of limitation would be calculated not from the date of the decree but from the dismissal of an appeal from that decree on 18 November 1912 that there had been a step taken by the decree-holder against another judgment-debtor for recovery of certain costs by an application in execution which saved limitation as against the present judgment-debtor objector and that though there was no operative order in the decree of 18 May 1909 for the payment of the sum claimed by the decree-holder from the judgment-debtor, this defence was barred to the present judgment-debtor by the rules of res judicata.

(3.) The last point may be disposed of first. The award dealt with the business of the firm of Sahu Radha Kishen whose descendants were parties to the suit for partition. In the award, while making up the accounts of the karkhana (business concern) of Gokul Prasad, Brij Bhukan Saran and Sibta Prasad, the arbitrator, has taken into account in favour of Dharam Kirti Saran and Sibta Prasad a sum of Rs. 12,046 2-3 payable to them by the Rampur business in which the present judgment-debtor Nandlal Saran was a partner (see p. 171 of the printed paper- book, F.A. No. 21 of 1911, District Moradabad, filed on 18 January 1911). Though this sum has been noted as due to Dharam Kirti Saran and Sibta Prasad, there is no direction in the award that the firm carrying on business in Rampur was liable to pay this sum to Dharam Kirti Saran and Sibta Prasad. No direction was given by the arbitrator as regards this sum of money because in an earlier portion of the award (p. 141 of the same printed book) an order was recorded by the arbitrator as part of the decree in the following terms: Out of the properties which were admittedly held jointly by all the members of the family of Sahu Radha Kishen the kothi hundi (i, e., the Hundi business) at Rampur and the immovable property in the said State are not partible by the civil Courts situate in British India.