JAWALA SAHAI Vs. BHIM SINGH

JUDGEMENT

(1.) Now that we have been able to arrive at the facts of this case the matter for decision is simple. It is a judgment-debtor's appeal. A decree was obtained on 31 July 1919. The first application for execution was made on 4 April 1922. On the 22 June, 1922, this application was dismissed. On 15 August 1925, a further application was made. It is clear that, unless some cause had been shown to prevent this, that application was barred by time, and the Court ought, unless for some good reason, to have proceeded forthwith to dismiss it as barred by time. It is unnecessary, therefore, to detail all the further proceedings that took place until the order of the Court on that application has been considered. For the respondent-decree-holder here reliance is placed on the fact that certain payments are set out in that application for execution as having been made within the period of limitation dating that period from 22 June, 1922, and the judgment-debtor was given credit for the alleged payments.

(2.) As it appears to us the decision in Baij Nath V/s. Panna Lal A.I.R. 1924 All. 703, following several other decisions to the same effect, is sufficient to conclude this matter. It was there held that the application to certify the payments must be made by a prior and separate proceeding to the application for execution. It is clear here that there was no separate proceeding and no prior proceeding to the application for execution of 15 August, 1925. The learned Subordinate Judge ought, therefore, to have proceeded forthwith to dismiss the application for execution as barred by limitation. The payments in this case are alleged to have been made on 19 January 1925, and 2 July, 1925, but not having been certified prior to the application for execution, would, in no case, be sufficient to save limitation.

(3.) Therefore, allowing the appeal we set aside the order of the lower appellate Court and holding that the application should have been struck off as barred by limitation set aside so much of the order of the learned Subordinate Judge as declares that the decree-holder will be at liberty to put in a fresh application for execution.