SHEOLAL RAMLAL Vs. RAMRAO BALASAHEB

JUDGEMENT

(1.) THIS is a miscellaneous (First) appeal against the order of Mr. Adharsinha, Subordinate Judge, First Class, Chhindwara, in Execution Case in civil Suit No. 8B of 1934 passed on 12-8 1941.

(2.) THE facts are quite simple. The appellant (decree-holder) obtained a decree against the respondent (judgment-debtor) on 16-8-1931 in Civil Suit No. 8 of 1934. On 6-8-1937 the decree-holder applied for transfer of the decree from Chbind wara to Nagpur and on 13-8-1937 the decree was ordered to be transferred and a certificate of non-satisfaction was also granted In the meantime, the judgment-debtor had applied for instalments and a stay order was passed by this Court on 21-9-1937. On this the Court recalled the certificate on 27-9-1937. The judgment-debtor was asked to furnish security but he failed to do so and on 5-11-1937 the Court ordered that the certificate be sent again for necessary action. Thereafter the decree-holder applied for transfer of the decree on 26 9-1940 and on 12-8-1941 the application was dismissed by the learned Judge as being barred by limitation. The decree-holder tries to save limitation in various ways. His first contention is that from 20-4-1938 till 2512-1938 the matter was pending before the Debt Conciliation Board and hence under Section 23, C.P. Debt Conciliation Act that period must be excluded. He further says that the judgment-debtor in his application to the Board had shown this decretal amount as being due and this amounts to an acknowledgment under Section 19, Limitation Act and gives a fresh period of limitation from 20-4-1938, which is the date of the application before the Board Ex. 0-4 He also says that on 30-9-1937 the counsel for the judgment debtor admitted the liability for the decretal amount in his memo of appeal before the High Court and therefore that too gives a fresh start of limitation and the present application of 26-9-1940 would be within 8 years from that date. It is obvious that even if one of these contentions is correct the limitation is saved and the execution is competent.

(3.) IT is, therefore, not necessary that there must be an execution pending before action by the decree-holder can be described as a step-in-aid of execution. This is also the view expressed in Risal Singh v. Lal Singh , Jagdeo Narain Singh v. Bhubaneshwari Koer A.I.R. 1928 Pat. 612.