AKSHOY KUMAR DE PATWARI Vs. NALINI KUMAR MAJUMDAR

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against a decision of the District Judge of Noakhali, dated the 9 April 1921, dismissing an appeal preferred by the judgment-debtor to him and confirming a decision of the Munsif.

(2.) The facts are as follows. A rent decree was obtained against the judgment-debtor on the 24 of May 1916. The decree-holder in execution of the decree brought the tenancy to sale on the 7 September 1918. The sale was set aside at the instance of the judgment-debtor on the 1 October 1920 the ground for setting aside the sale being that the sale proclamation had been suppressed. Although the sale had been set aside the decree-holder did not refund the purchase-money paid by the auction-purchaser. No order to this effect was made at this date. Then the decree-holder made a second application on the 20 April 1921 for execution of the rent-decree. It was urged by the judgment-debtor that the application was barred by limitation. But this contention was overruled. On appeal it was held that limitation was no bar but that the application for execution was not maintainable inasmuch as the money had not been refunded by the decree-holder and in the result the application of the 20 April 1921 was dismissed. The learned Judge states "The execution case is dismissed," But this must clearly apply to the application of the 20 April 1921, alone for in an earlier part of his judgment the learned Judge expressly states that the applicant, that is, the decree-holder, may apply for execution in continuation of his previous application, that is to say, the application of 1918 which, it seems to me by virtue of this order of the District Judge is clearly treated as then pending and undisposed of. On the 5 September 1921 the auction-purchaser applied for refund of the purchase-money paid by him and an order for such a refund was made on the 26 November 1921. But in fact the money was not refunded until the 23rd February 1923. Subsequent to the refund, namely, on the 27 February 1923, the decree- holder again applied for sale of the property in continuation of the previous execution case. It is stated that before the 10 of August 1921 the property was brought to sale by the same decree-holder in execution of another decree and that he purchased it himself. But the facts on this point are not clear and we do not think that we can attach any importance to this sale in the present application.

(3.) Then to return to the application of the 27 February 1923 the first Court held that it was not barred by limitation, holding that time ran from the date of the refund, that it to say, 23rd February 1923. The lower Appellate Court confirmed this decision and held that the application of the. 27 February 1923 was merely in continuation of the first application for execution and that accordingly, it was not time-barred.