KRISHNA DUTTA Vs. GANGA PRASAD

JUDGEMENT

(1.) These are two second appeals by a decree holder against a decision of the learned District Judge of Manbhum reversing an order of the Subordinate Judge of Dhanbad and holding that his application for execution was time-barred. The decree had been obtained in the Court of the Munsif of Mirzapur in the United Provinces on 4 June 1931, and the petition for execution which has been held to be time-barred was filed in the Court of the Subordinate Judge of Dhanbad on 4th June 1943, i.e. the last day of the 12 years period of limitation. The steps that had been taken in the intervening period were as follows:

(2.) On 31 July 1931, the appellant filed an application in the Mirzapur Court for transfer of the decree to the Dhanbad Court for execution and on 8 August 1931, it was ordered that a certificate should be prepared and handed over to the decree-holder's counsel, which appears to have been done. But evidently thereafter the decree-holder took no action. Then on 3 August 1934, a second application for transfer to the Dhanbad Court was made in the Mirzapur Court on which ultimately an order was passed on 28 February 1936, by the Mirzapur Court that a certificate of the decree be prepared, and on 25 March 1936, the order forwarding the certificate of non-satisfaction of the decree to the District Judge of Manbhum was actually passed by the Munsif of Mirzapur and on the next day the case was accordingly dismissed.

(3.) On 28 March 1939, the appellant filed an application in the Court of the Munsif of Mirzapur for execution by arrest of the judgment-debtors. At this date, no intimation of non-satisfaction had yet been sent by the Subordinate Judge, of Dhanbad, but this was done on 29 May 1939, when the certificate of non- satisfaction dated 25-3-1936, given by the Munsif of Mirzapur was sent back with the remark that it is "returned with the intimation that no execution has been taken." The appellant apparently took no steps to pursue his application for execution by arrest of the judgment, debtors and it was accordingly, on 14-8- 1939; ordered to be struck off for default of prosecution.