LAKHMI CHAND Vs. BIBI KALSUMANNISA

JUDGEMENT

(1.) This is a judgment-debtors appeal from the order of a learned single Judge of this Court. The decree-holder obtained a decree dated 13 February 1926 in a suit against Daya Nand and others for possession of a house in village Danpur, and for a perpetual injunction restraining the defendants in that suit from, installing an idol in the said house and from blowing conches and doing all such acts as were calculated to occasion a breach of the peace in the village. On 28th April 1933, the decree-holder made an application, for execution. The judgment- debtors objected that the application was time barred. This objection was repelled by the Court of first instance. The order of that Court was upheld in appeal by the lower Appellate Court. The lower Appellate Court's order has been sustained by the learned single-Judge before whom the matter came in second appeal. Prima facie the application for execution of the decree dated 13 February 1926 preferred on 28 April 1933 was barred by limitation. The decree-holder contended however that the period of limitation in respect of his decree was interrupted from 3 February 1928 until 2 May, 1931.

(2.) Before the decree-holder could execute his decree of 13 February 1926, a suit was instituted in the name of an idol Sri Thakur Krishan Maharaj, represented by one Nand Ram who claimed to be the pujari of the temple, the allegation in the plaint being that the aforesaid house was a temple. The plaintiff in this suit averred, inter alia, that the decree of 13 February 1926 had been obtained by collusion and fraud. Ho sought for a declaration that the pujari Nand Ram was in possession of the temple and that the plaintiff in the earlier suit, namely the decree-holder, had no right to take possession of the temple or to interfere with the worship therein. Further, a perpetual injunction was claimed restraining the defendant from interfering with the use of the temple as a place of worship, and the blowing of conches, etc. This suit was decreed, by the trial Court. The trial Court decree was affirmed in first appeal. The defendant, who is the decree-holder in the present proceedings, appealed to the High Court, which recalled the order of the lower Appellate Court and dismissed the suit. The order of the trial Court decreeing the suit was passed on 3 February 1928. The order of the High Court dismissing the suit was passed on 2 May, 1931. The operative part of the trial Court's order is as follows: Suit is decreed with full costs. It is hereby declared that the plaintiff is the owner in possession of the temple and the land in suit, and the defendant has no concern with it now. She is not entitled to eject the plaintiff. She is hereby restrained from taking possession of this house and laud and from interfering with the blowing of conches, ringing of bells and performing of artis and other rituals in the temple in future.

(3.) Now this order was in force between 3 February 1928 and 2 May, 1931, when it was set aside by the High Court. In these circumstances, it was contended by the decree-holder that the period from 3 February 1928 until 2 May, 1931 should be excluded in computing the period of limitation in respect of his decree of 13 February 1926. If during the aforementioned period, limitation be held not to run, then the application for the execution of the decree made on 28 April 1933 is within time. The contention that the period of limitation was interrupted as aforementioned, and that the execution application of 28 April 1933 was therefore within time has found favour with the Court of first instance, the lower Appellate Court and with the learned single Judge who disposed of the matter in second appeal. The view taken by the learned Judge in second appeal is that the decree of 3 February 1928 had the effect of rendering impossible the execution of the decree in the first suit dated 13 February 1926 which on 28 April 1933 the decree-holder sought to execute, and that therefore the decree of 13th February was stayed "by injunction or order" within the meaning of Section 15(1), Limitation Act. Section 15(1) is in the following terms: In computing the period of limitation, prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded.