SIR KAMESHWAR SINGH Vs. JAIPARKASH NARAIN SINGH

JUDGEMENT

(1.) This appeal is directed against the order of the Subordinate Judge, Third Court, Gaya, under Section 47, Civil P.C., in an execution proceeding for the realisation of decretal dues under a rent decree which was passed on 7 May 1940. It appears that the decree-holder had made a previous application for execution which was registered as Execution case No. 128 of 1941. During the pendency of that execution case notice under Section 148(g), Bihar Tenancy Act, was served on 18 April 1943. That case was however, dismissed by the Court on 21 April 1943, on the ground of non-service of the notice. The decree-holder presented a second application for execution on 4 May 1943. The judgment- debtor objected to the entertainment of the second petition on the ground that no application for execution could be entertained within 45 days from the date of service of notice which is the period prescribed for payment of the decretal dues. This objection prevailed with the lower Court and the Court by its order dated 28th March 1944, directed the execution case to be struck off.

(2.) It is contended for the appellant that there is nothing in Section 158AA, Bihar Tenancy Act, which bars the decree-holder from putting in an application for execution of his decree within 45 days from the date of service of the notice, nor there is anything in that section which prevents the Court from entertaining an application within the said period of 45 days. It is stated that the section merely provides that if the judgment-debtor fails to pay to the decree-holder or deposit into Court the decretal amount, such amount may, upon an application made in this behalf, by, the decree-holder be realised by the attachment and sale of the property of the judgment-debtor, both movable and immovable. It is argued that the service of notice under Section 148(g), Bihar Tenancy Act, is not a condition precedent to the entertainment of an application for execution and it merely bars the realisation of the decree by attachment and sale of the judgment-debtor's property within the said period of 45 days from the date of service of notice.

(3.) In support of the contention, reference is made to the decision of a Division Bench of this Court in Sayeeda Khatoon V/s. Bisundeo Singh A.I.R. 1945 Pat. 268. This case is a clear authority in support of the contention of the learned advocate. In that case reference is made with approval to a previous: decision of Reuben J. in Ramcaran Singh V/s. Sarimati Janki Devi M.A. No. 152 of 1943, unreported. In that case, his Lordship pointed out that Section 158 A A, lays stress on the realisation of the decree by attachment and sale of the judgment-debtor's property and not on the filing of an execution petition, that is to say, Section 158AA does not prohibit the filing of an execution petition, but only provides that the judgment-debtor should be given a further chance of complying with the terms of the decree against him before his property, movable or immovable could be put up for sale in realisation of the decree against him.