LACHMI PRASAD Vs. KAPILDEO OJHA

JUDGEMENT

(1.) It appears that the appellant having obtained a decree sometime in 1930 proceeded to execute it in 1933 but his application for execution was dismissed on 16 September 1933. The reason for the dismissal was that though the executing Court had directed him to supply within a certain time a talika of the judgment, debtor's property which was wanting, yet he failed to do so within that time.

(2.) The next application for execution was made on 25 May 1936 when the question arose whether the execution was still within time. The learned Munsif before whom the application was made held that it was barred by limitation inasmuch as the application made in 1933 was not in accordance with law and in support of his view he relied upon the decision of the Allahabad High Court in Abdul Rafi Khan V/s. Maula Bakhsh . The decree-holder thereupon appealed to the District Judge who summarily dis. missed the appeal with the observation that he agreed with the view of limitation taken by the Munsif. The appellant has DOW preferred a second appeal under Section 47, Civil P.C. A reference to the decision in Abdul Rafi Khan V/s. Maula Bakhsh shows that in that case the decree-holder had not complied with the provisions of Order 21, Rule 12 which provides that where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. The learned Munsif has throughout his discussion proceeded upon the assumption that in the present case also the inventory under Order 21, Rule 12 had to be filed but was not filed. This assumption he seems to have made upon the basis of the order-sheet (Ex. 1) in which the following orders are recorded: 14--9--88 : Talika is wanting. The decree-holder to supply the same by 16--9--33. 16--9--33 : No steps taken. Ordered--rejected.

(3.) Now it appears to me that in order to decide whether the application of 1933 was or was not in accordance with law, it was necessary for the Courts below to have had that application before them and the question could not be decided simply with reference to the orders which I have quoted just now. It is not clear whether in the execution case of 1933 the decree-holders in fact wanted to proceed against any properties which though belonging to the judgment-debtors were not in his possession or whether any inventory of properties was necessary at all. It is also not known what was the mode in which the assistance of the Court was required in the application made by the decree-holders in 1933.