KAYASTHA CO LTD Vs. SITA RAM DUBEY

JUDGEMENT

(1.) This is an appeal in execution proceedings. The decree of which execution is sought was pronounced on 24 February 1916 against the respondent and in favour of the appellant company. On 6 August 1979, the decree was attached by a certain Miss Chatterji in execution of a decree which she had obtained against the appellant company; and on 23 July 1918 the decree was on her request transferred to the Collector of the district in which the respondent resides for execution under Sch. 3, Civil P.C. On 9 December 1917, before decree was so transferred, the appellant company assigned the decree to one Raghunath Prasad, who on 13 February 1919 applied to the Court which pronounced the decree to have his name recorded as the owner of the decree and to have personal execution against the respondent.

(2.) This application for personal execution was rejected on 21 February 1919, and on 24 February 1921 Ragunath prasad retransferred the decree to the appellant company. Meanwhile on 21 January 1919 the appellant company had deposited the process fee for execution of the decree by the Collector; but for some reason of which we are not informed the decree was not executed by the Collector, although the property of the respondent was advertised for sale; and on 23 April 1920 the Collector returned the decree to the civil Court and the application for execution was struck off. The appellant company again applied for execution on 10 February 1922, and notice was issued under Order 21, Rule 22, Civil P.C., but on 18 March of the same year, this application was struck off for default. This application out of which this appeal arises was made by the appellant company on 6 January 1925. The lower appellate Court held that the decree was barred by limitation as more than three years had elapsed between the date, namely 23 July 1918, when Miss Chatterjee applied for execution of it and the 10 February 1922 when the appellant company again applied for execution.

(3.) On behalf of the appellant company two points have been argued: (1) that the application by Raghunath Prasad was sufficient by Raghunath Prasad was sufficient to keep the decree alive although the lower appellate Court has found as a fact that this application was "far from being bona fide," and "was a colourable application filed simple to show that he was the assignee of the decree." (2) That in calculating the period of limitation under Art. 182, Lim. Act, the period during which the decree was with Collector for execution should be excluded: see Rule 11 (3), Sch. 3, Civil P.C. We think that this contention must prevail. Under the words of Rule 11(3), Sch. 3: the same period (i.e. the period mentioned in Clause (1) of the same rule) shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived.