CHANDRABALI KALAR Vs. BAIDYANATH BANERJEE

JUDGEMENT

(1.) This second appeal arises out of an order made in execution of a decree. The decree in question was passed in 1934, and from time to time was put into execution. When in 1989 certain property of the judgment-debtor was attached, an objection was taken that the property was not liable to attachment under certain provisions contained in the Central Provinces Tenancy Act. This objection was rejected by the learned munsif on 27 September 1939. An appeal was preferred against his order, and on 29 January 1940, this appeal succeeded. The decree-holder, instead of proceeding against other property belonging to the judgment-debtor, preferred a second appeal to the High Court.

(2.) In consequence, his application for execution was dismissed for default in prosecution on 9 February 1940. The second appeal which he preferred to the High Court was dismissed on 24 March 1941. The present application for execution was made on 18 February 1943, and was, therefore, made beyond the period of limitation, if limitation is to be computed from 9 February 1940. It is, however, contended that limitation is to be computed from 24 March 1941, when the second appeal was dismissed. This contention has been accepted by both the Courts below. The Courts below relied mainly on the decision of Kulwant Sahay and Macpherson, JJ. In Jagdeo Narain Singh V/s. Bhubaneahwari Kuer A.I.R. 1928 Pat. 612. In that case certain property was attached and purchased by the decree-holder. Subsequently an application was made by the judgment, debtor to have the sale set aside. The entire decretal amount had not been realized; and instead of proceeding against other property of the judgment-debtor for the balance, the decree-holder waited until the application to have the sale set aside had been dismissed. It was held that certain steps taken by the decree-holder to resist the application to have the sale set aside were steps-in-aid of execution and availed to save limitation.

(3.) The decision can, I think myself, be supported on the ground that the proceeding instituted by the judgment-debtor to have the sale set aside was ancillary to, and indeed, part and parcel of the proceeding in execution of the decree. The decision is, it is clear, not directly in point here. Mr. Sen, for the respondent, however, referred to an earlier decision to which Kulawant Sahay J., was also a party and which was cited in Jagdeo Narain Singh V/s. Bhubaneahwari Kuer A.I.R. 1928 Pat. 612. In that decision, Sheo Sahay V/s. Jamuna Prasad Singh A.I.R. 1925 pat. 459, their Lordships, at the conclusion of their judgment, which was a short one, said somewhat compendiously: There can hardly be any doubt that the decree-holders are entitled to regard any step taken by them to remove the obstacle thrown by the judgment-debtor in their way to the realisation of their decree as a step- in-aid of execution.