DHARAMDEO RAI Vs. JWALA PRASAD

JUDGEMENT

(1.) This is an appeal from an order of the learned Additional Judge of Ballia reversing that of a Munsiff of that district and dismissing the appellant's application for execution of his decree on the grounds (1) that it was barred by limitation, and (2) that it was made by one only of two decree-holders without certain formalities being observed. The appellant challenges the correctness of the view taken by the lower appellate Court on both the grounds.

(2.) The circumstances leading to the application in question may be briefly stated. A decree under Order 34, Rule 6, Civil P.C., was passed on 29 May 1920 in favour of Dharamdeo Rai, the appellant, and Chhatarsal Rai against Raj Ballabh Sahai for a sum of Rs. 1,074-4-0. The first application for execution was made on 29 May 1921: but it was dismissed for want of prosecution after a protracted proceeding lasting for several months. The lower appellate Court has discussed the circumstances which led it to believe that: that application was not a bona fide application with the intention of obtaining execution and was therefore in effective to save limitation.

(3.) The second application was made on 4 January 1924. It prayed for attachment and sale of the immovable property belonging to the judgment-debtor, who had since died, and the execution proceedings were directed against his legal representative. As the decree was over a year old and the application for execution was made against the legal representative of the original judgment debtor, notice was issued under Order 21, Rule 22, Civil P.C. Several attempts were made to effect service on the legal representative of the judgment-debtor but for some technical reason or other, which it is not necessary to mention in detail, notice remained unserved and the application was eventually dismissed on 13 January 1925. The learned Additional Judge has held that this application, like the first, was not a bona fide application for execution and was, besides, not in accordance with law in so far as it was not accompanied by a certificate from the registration office in regard to incumbrances on the property sought to be attached and sold. It has been pointed out by the learned Judge that this application was made more than three years after the date of the decree, though within three years from the date of the first application. If, therefore, the first application did not give a fresh start to limitation, the second application was barred by time, even if it be otherwise a good application. The third and the last application, which has given rise to this appeal, was made on 20 December 1926. In view of his opinion that the first application was not a bona fide one and that the second application was barred by limitation besides not being in accordance with law, the limitation for the third application was counted from the date of the decree and therefore, it was held to be barred. Another ground on which the learned Judge threw out the last application is that Dharamdeo Rai, the appellant, alone applied for execution: without showing that Chhatarsal Rai (the co-decree-holder), had died and without impleading his legal representative.