MT BITTEE Vs. KANHAIYA LAL MISIR

JUDGEMENT

(1.) This is a judgment-debtor's appeal arising out of certain execution proceedings. In 1913 a final decree for partition was passed in favour of Sheo Shanker the vendor of the contesting respondent. Applications for execution were made by Sheo Shanker in 1914 and in subsequent years, but no delivery of possession could he made. On the 2 October, 1916 Sheo Shanker executed a sale-deed in favour of the present respondent. On the strength of this sale deed Sheo Shanker's vendee filed an application for execution on the 9 of January 1918. Notice was ordered to be issued on this application and was served on the judgment-debtor, Mt. Bittee. On the 10 of May 1918 she filed objections to the execution. She did not plead that the application of the 9 of January 1918 was in any way barred by time, nor did she plead that Kanhaiya Lal Misir was not a transferee of the decree and was not entitled to execute it. The only objection which she raised was that he could not execute the decree without first paying her Rs. 30 allowed under the partition decree.

(2.) Subsequently, on the 8 of June 1918, Sheo Shanker, the original decree- holder filed an application stating that he bad transferred the decree to the applicant who should be allowed to execute it. On the 15 June 1918 the application came up for disposal. The Court looked at the copy of the sale deed filed by the applicant and noticed that the number of the decree mentioned in it was slightly different from the number of the decree sought to be executed. The Court thought that apparently the transfer was of some other decree. If that was its real conclusion, it ought to have dismissed the application on the ground that Kanhaiya Lal Misir bad no locus standi to execute the decree. The Court however, did not dismiss the application nor rejected it, nor did it even strike it off. It was simply ordered to be "filed".

(3.) On the 6 of September 1918 Kanhaiya Lal got a second registered document executed in which the mistake in the previous sale-deed was corrected. He then filed a fresh application on the 2 May, 1921 for execution. This time he did not file a copy of the decree along with this application, and though the Court on several occasions granted him time to file a copy he failed to do so: His application was ultimately struck off. He then filed another application on the 15 of January 1924 which also was struck off. Lastly he filed the present application on the 21st of May 1924 for execution. The judgment-debtor filed objections to the execution. The Courts below have overruled those objections and have allowed the execution to proceed. The judgment-debtor has come up in second appeal. The learned Counsel for the appellant had not urged any plea of want of right in the respondent to execute the decree, nor has he urged any plea of res judicata. The only plea urged before me is that the present application is barred by time.