RISAL SINGH Vs. LAL SINGH

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order passed by the Court below dismissing his application for execution on the ground that it was not within limitation. The decree-holder obtained a mortgage decree against the judgment- debtor which was made final on 29 April 1933. The application for execution was made on 8 August 1936. It will be seen that it was made more than three years after the data of the final decree. In his application for execution the decree-holder gave his reasons for claiming that his application was within limitation. The decree-holder stated that he went to Court to make his application for execution on 27 April 1936, but learnt that the judgment-debtor had made an application under Section 4, Encumbered Estates Act, on that very day. The decree-holder therefore considered it un-necessary to make an application for execution. It is alleged that later on, on 14 July 1936, the judgment-debtor got his application and the proceedings under the Encumbered Estates Act dismissed. The decree- holder apparently contended that the period between 4 April 1936 and 14 July 1936 should be excluded and so his application would be within limitation. The learned Judge of the Court below held that the contention of the decree-holder had no force. He was of opinion that the proceedings taken by the judgment-debtor under the Encumbered Estates Act did not extend the period of limitation. He also disbelieved the story of the decree-holder that he did not come to know of the dismissal of the Encumbered Estates Act proceedings on 14 July 1936. In his opinion, the decree-holder learnt of the dismissal of those proceedings on 14th July 1936. He therefore held that the decree-holder was not entitled to any benefit under Section 5, Limitation Act. In our opinion, on the case as it was argued before the Court below, the learned Judge was right in dismissing the application as being barred by time.

(2.) In this Court, two new points have been taken by learned Counsel for the appellant In support of his contention to the effect that the application for execution was within limitation.

(3.) The first contention urged on behalf of the appellant is that his application for an Injunction was a step-in-aid of execution which saved limitation. If this contention is accepted, then, certainly the present application would be within limitation. On behalf of the judgment-debtor it is urged that the application for injunction had been made when no application for execution was pending and so it cannot be said that any step-in-aid of execution had been taken. In other words, it is contended that no step by a decree-holder taken before an application for execution is put in, can be treated as a step-in-aid of execution. It is argued that the condition precedent is that an application for execution made in accordance with law must be pending when the step alleged to have been taken in aid [of execution is taken. After a consideration of the point we are of opinion that it is not correct to say that in no case can a step-in-aid of execution be taken before an application for execution of the decree has been made in Court. For instance, an application to bring deceased judgment-debtor's representative on record would be in step-in-aid of execution even though no application for execution has been made. Then, another such case may be where the decree-holder dies after obtaining the decree. It would be necessary for his legal representative to apply for substitution of their names. Such a step would be a step-in-aid of execution though in both such cases an application for execution may not have been made. The Madras High Court has taken the view that an act or an application in order to be a step-in-aid of execution need not be in a pending execution application : see Kannan V/s. Avvula Haji (1927) 14 A.I.R. Mad. 288. The same view has been taken by the Patna High Court in Jagdeo Narain Singh V/s. Bhubaneshwari Kuer (1928) 15 A.I.R. Pat. 612. Learned Counsel for the respondent relied on Krishna Pattar V/s. Seetharama Pattar (1926) 13 A.I.R. Mad. 1178 But it appears to us that so far as the point under discussion is concerned this case is of no help. Their Lordships in their judgment refer to the contention raised before them to the effect that the step-in-aid must be made in a pending application. They say that the question did not require consideration in view of the case before them. In our judgment an application to take a step-in-aid of execution need not be in a pending execution case. As held in Jagdeo Narain Singh V/s. Bhubaneshwari Kuer (1928) 15 A.I.R. Pat. 612 an application made in any other proceeding which affects the execution of decree may be treated as a step-in-aid of execution. Our own High Court in Baldeo Singh V/s. Ram Swarup (1921) 8 A.I.R. All. 174 held that the filing of an appeal in order to remove the impediment of a prior charge in the way of executing the decree unconditionally was a step-in-aid of execution. For the reasons given above, we hold that an application made before an execution application has been made may be a step-in-aid of execution.