INDERDEO PROSAD RAI Vs. DEONARAYAN MAHTON

JUDGEMENT

(1.) This is a judgment-debtor's second appeal arising from an order of reversal, rejecting his contention that the execution of the decree was barred by limitation. The appeal first Came before Sinha, J. sitting singly, who has referred it to a Divisional Bench.

(2.) The decree in question was made by the Munsif, 2nd Court, Bhagalpur, on 6th September 1982. On 10 May 1988, on the application of the decree-holder the decree was sent to a Munsifs Court, Monghyr, for execution. The provisions of Order 21, Rules 5 and 8, were not strictly complied with, because the papers were sent direct to the Monghyr Munsif instead of through the District Judge, Monghyr. That defect apparently remained unnoticed for a number of years. On 30 April 1985, an application for execution was filed by the decree-holder in the Court of the Monghyr Munsif. This was dismissed for default on 28 November 1935. The decree-holder did nothing more until 1988, when he filed another application for execution in the Monghyr Court which was dismissed for default in the same year. He then did nothing until the year 1941, when he filed one more application for execution in the Monghyr Court, and this also was dismissed for default in the same year. Another application was then filed on 11 November 1941 also in Monghyr and in the course of argument upon an application under Section 47, in which the point had not been raised, it was urged that the Monghyr Court was incompetent to execute the decree as it was not in proper seisin of the case. On 28 November 1942, the learned Munsif made over the papers to the decree- holder for getting the defect removed, without dismissing the application for execution. He remarked that he saw no justification for dismissing the application and that he could have stayed the case until the necessary formality was gone through but that was unnecessary, as the decree was not going to be time-barred.

(3.) The decree-holder got the irregularity cured, and then filed the present execution case on 1 February 1943. In this case the point was raised that execution was barred, because the previous applications made before the Monghyr Court in the years 193S to 1941 could not be considered as steps-in-aid made to the proper Court in accordance with law within the meaning of Art. 182(5), Limitation Act. This objection Succeeded before the learned Munsif, but, as I have said, was rejected by the learned Subordinate Judge.