BABU RAM Vs. PEAREY LAL

JUDGEMENT

(1.) The question for determination in this appeal is one of limitation. The fasts are not in dispute. The decree under execution was one of 3rd December 1912, and the application for execution oat of which this appeal arises was presented on the 15th of March 1917. It was, therefore, beyond limitation, unless the decree-holder could show that there had been in the interval, and within three years of this present application, another application made in accordance with law to the proper Court to take some step in-aid of execution of the decree or order, within the meaning of Article 182, Clause (5) of the 1st Schedule to the Indian Limitation Act (Act IX of 1909). Now it is admitted that there had been in the interval a partial satisfaction of the decree by a sale of a portion of the property. At this sale the hypothecated property was sold and the decree-holder had purchased it with the leave of the Court on the 20th of January 1914. On the 26th of June 1914, the decree-holder, on the strength of this auction-purchase, applied to the execution Court under Order XXI, Rule 95, of the Civil Procedure Code to give him possession of the property which he had purchased. According to a clear decision of a Bench of this Court in Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117 : 9 Ind. Dec. (N.S.) 308, this application does operate as a step in-aid of execution of the decree and does save limitation for any subsequent application.

(2.) The contention for the judgment-debtor-appellant is that the principles underlying the above decision were discussed by a Full Bench of this Court in Bhagwati v. Banwari Lal 1 Ind. Cas. 416 (F.B.) : 31 A. 82 : 6 M.L.T. 185 : 6 A.L.J. 71 and that the decision of the Full Bench in that case is inconsistent with the view taken in Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117 : 9 Ind. Dec. (N.S.) 308.

(3.) It is further pointed out that one of the learned Judges who delivered the judgment of the majority of the Full Bench stated in express-terms that he was unable to agree with the view taken by the learned Judges who decided Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117 : 9 Ind. Dec. (N.S.) 308. It seems to us that the questions for decision in the two rulings were altogether different and that the opinion expressed by one of the learned Judges in the latter case cannot be treated as overruling the considered decision of a Bench of this Court on a question of limitation, which was certainly not before the Full Bench when they pronounced the later decision.