BISHAN SARUP Vs. CHRICHPAL SINGH

JUDGEMENT

(1.) This is an appeal by the decree-holder, whose application for execution has been dismissed on the ground of limitation. The facts are briefly these : on 9-1- 1931 the appellant obtained a simple money decree against five persons, including the respondent, Ch. Richhpal Singh. On 13-4-1931 an application for execution was presented by the appellant against all the judgment-debtors, barring Ch. Richpal Singh. In 1936 the other four made an application under the Encumbered Estates Act. On. 17-1-1936 the Collector passed the usual order under Section 6 of that Act. The proceedings under Section 9 followed and on 5-1-1940 the liability of all the judgment debtors, including Ch. Richpal Singh, was deter-mined and apportioned. On 16-9-1942, the application for execution was dismissed. The last application, which has given rise to the present appeal, was made on 19-11-1943, against Ch. Richpal Singh. An objection was taken to this application on the ground that it was barred by limitation. The learned Civil Judge acceded to this objection and dismissed the application. The decree-holder has come to this Court in appeal

(2.) The bar of limitation was raised on the basis of a two-fold plea - Section 48, Civil P.C. and the usual plea based on the three years rule of limitation. The former did not commend itself to the learned Civil Judge, the latter did, and what falls to be considered is whether he was right in his view that the application is barred by limitation.

(3.) The learned Civil Judge was of opinion that the effect of the order of 17-1- 1936, was that the previous execution application was dismissed and the mere fact that the proceedings continued till 16-11-1942 will not wipe out that effect.