ANANDA LAL CHAKRAVARTY Vs. SMKATYANI DEBI

JUDGEMENT

(1.) This appeal which is on behalf of the decree-holders involves the question as to whether their application for execution, filed on 22 March, 1935, was barred by limitation or not. Both the Courts have answered the question in the affirmative and have dismissed the application for execution. In my judgment, the point of limitation has been wrongly decided and that the application for execution filed on the said date by the decree-holders is not barred by time. The decree-holders, who are large in number, obtained a final decree for mesne profits against the judgment-debtors on the 3 December 1929. It is this decree which is sought to be executed. All of them filed an application for execution in the year 1931. That application for execution was numbered Execution Case No. 5 of 1931, It is admitted that, that was an application in accordance with law filed in the proper Court. The final order on the said application was passed on 27 January 1931. The decree-holders therefore got a fresh start from 27 January 1931. But the present application for execution is beyond 3 years of the said date. After this order of 27 January 1931 three of the original decree-holders died. The second application for execution, which was numbered as Execution Case No. 724 of 1931, was filed by the surviving decree-holders and the legal representatives of the said three deceased decree-holders. But the legal representatives of the deceased decree-holders had not obtained at that time succession certificates. The judgment-debtors filed an objection to that execution proceeding; the objection was numbered as Miscellaneous Case No. 272 of 1931.

(2.) While this objection of the judgment debtors was pending consideration the surviving decree-holders made an application to the executing Court on 19 March 1932 asking the said Court to proceed with the execution on the footing of 0. 21, Rule 15, that is to say, they prayed for the execution of the entire decree for the benefit of themselves and of the legal representatives of the three deceased decree-holders. The original application for execution and this application which was filed on 19 March 1932 were considered by the Court and dealt with by its order dated March 1932. Dealing with the application of 19 March 1932 the Court said that it could not be granted as the effect of granting it would be to allow the amendment of the original application for execution which was not in accordance with law at the beginning, meaning thereby obviously that the original application for execution could not be proceeded with inasmuch as the legal representatives of the three of the deceased decree- holders who had joined in that application could not proceed with the application without the production of the succession certificates. If limitation runs from the 24 March 1932 the present application for execution is in time. The whole question, therefore, depends upon the provisions of Clause 5 of Art. 182 of the Limitation Act. That clause is in these terms: (Where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree or order.

(3.) The original application for execution which was registered as Execution Case No. 724 of 1931, though made in the proper Court, may not be an application in accordance with law. That was the view taken by the Court in disposing of Miscellaneous Case No. 272 of 1931 and the view expressed therein on that application may be res-judicata. It may be an erroneous decision, but it is still res judicata as Mr. Chatterji appearing for the respondents submits. But even if that be res judicata that does not dispose of the matter. The application of 19 March 1932, however, puts a different complexion to the whole matter. In that application the decree-holders applied for proceeding with the execution on the footing that application is to be treated as an application under Order 21, Rule 15. If that application was treated as an original application for execution it was an application made to the proper Court in accordance with law because having regard to the fact that the final order in Execution Case No. 5 of 1931 having been passed on 27 January 1931 that application treating it as an original application for execution was within time. It was, therefore, an application in accordance with law. It is an application which could be granted by the Court; there was no law preventing the Court from granting it or tying down its hands. No doubt the Court did not grant it but the order by which that application was not granted, namely the order of 24 March 1932, is the final order on that application.