CHHATTAR SINGH Vs. KAMAL SINGH

JUDGEMENT

(1.) I have read the judgments delivered by the other members of the Bench, and agree with them generally. I desire to make only two observations. In my opinion, an order made by a Judge upon an application which is still pending, that it be "struck off," or "sent to the record room," made either without notice to the decree-holder, or without giving him an opportunity of being heard, is a ministerial order, and cannot be regarded speaking generally as a judicial disposal of the application on the merits, though special circumstances may appear which make it so. Secondly, whether an application is in substance a fresh one, or an attempt to revive a former one, is, as a general rule, a question of fact to be decided with reference to all the circumstances of the case. Lindsay, J

(2.) The question referred to this Full Bench for decision is one of limitation, namely whether an application made by the decree-holders on the 10 January 1923 was liable to be dismissed as being beyond time. The Courts below treated it as time-barred; in Second Appeal the decree-holders contend that it was made within time. The facts are fully set out in the referring order; it will be sufficient to state here such of them only as bear immediately upon the question now before us.

(3.) The appellants, who are the decree-holders, obtained a final decree for sale on the 7 June 1913. They made an application for execution on the 4 January 1916, and on the 23 March 1916, the execution proceedings were transferred to the Collector for execution as the property sought to be sold was ancestral. On the 13 November 1916, while the proceedings were still pending before the Collector, a suit was brought to obtain a declaration that the property was not liable to be sold in execution. The litigation, thus commenced, went on till the 6th July 1920, when this Court decided that the property was liable to be sold and dismissed the suit.