RAM RANBIJAYA PRASAD SINGH Vs. KESHO PRASAD SINGH

JUDGEMENT

(1.) The learned Judge in the Court below has dismissed the application for execution, first on the ground that it was necessary to take out a succession certificate, and secondly that the application was barred by limitation.

(2.) The applicant was the present holder of an impartible estate, the last holder of which had obtained the decree which was under execution. The decree was obtained on 1 October 1924. Some only of the defendants appealed to the High Court, and on 6 Jan. 1926, a peremptory order was made directing those defendants to pay certain printing costs within seven days: upon failure to comply with that order (as the nature of the order which I have stated suggests), the appeal would be dismissed without any further reference to the Court. Now, it is perfectly clear that if the order of 13 January 1926, which was seven days after the order made by the High Court and the date upon which the appeal formally stood dismissed, be taken, it is clear that the applicant was not precluded by reason of Section 48 of the Civil P. C. from pursuing his remedy in execution. If however 13 January 1926 be not the date, but an earlier one, it is equally clear that the application is barred by the provisions of the section to which I have referred.

(3.) Dr. Mitter who appears on behalf of the judgment-debtor relies upon the decision of their Lordships of the Judicial Committee of the Privy Council in 36 All 3501 for the purpose of contending that the date upon which the appeal stood dismissed being 13 January 1926 was not the date from which limitation ran. In 36 All 3501 the mortgagor had appealed to their Lordships of the Judicial Committee of the Privy Council, and that appeal had been dismissed before their Lordships Board for want of prosecution. The contention of the decree-holder there was that the period of limitation should run from the date of the order of their Lordships formally dismissing the appeal for want of prosecution. But in the course of the judgment which was delivered by Lord Moulton this observation was made: To put it shortly, the only decree for sale that exists is the decree, dated 8 April 1893, and that is a decree of the High Court of Allahabad. The operation of this decree has never been stayed, and there is no decree of His Majesty in Council in which it has become merged.