KOER DURAG PAL SINGH Vs. THPANCHAM SINGH

JUDGEMENT

(1.) The question referred for decision may be stated thus : "Is Section 48, Civil P.C., uncontrolled by the provisions of Section 15, Limitation Act?" The question has arisen in the following circumstances : A final decree was passed on 19 May 1922 against one Raghubir Pal Singh and his son Dirag Pal Singh. The decree- holders presented an application for execution of that decree on 8 May 1925. During the pendency of this application, the validity of the decree was challenged by the judgment-debtors in Suit No. 171 of 1926. This suit was dismissed by the trial Court on 23 May 1927. The plaintiffs appealed to the High Court and during the pendency of the appeal in the High Court the execution proceedings initiated on 8 May 1925 were stayed by order dated 26 November 1927. On 12 April 1932, the judgment-debtors appeal in Suit No. 171 of 1926 was dismissed and the stay order was discharged. The execution application had remained pending throughout. It was however dismissed for want of prosecution in February 1936. The decree-holders, on 20 October 1936, filed a second application for execution. The judgment-debtor objected to the execution of the decree upon the ground that it was barred by Section 48, Civil P.C. The decree was passed in 1922 and the second application for execution was made in 1936, that is after the lapse of 12 years. The decree-holders maintained however that in virtue of the provisions of Section 15, Limitation Act, in computing the time within which they were entitled to execute their decree the period during which the execution of the decree had been stayed should not be included. Section 48, Civil P.C., enjoins that: Where an application to execute a decree not doing a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from- (a) the date of the decree sought to be executed, ...

(2.) This provision imposes a complete bar to the execution of a decree after the expiration of 12 years from the date on which the decree was granted except in the cases for which provision is made later in the Section. Section 15, Limitation Act, is in these terms: (1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(3.) If the terms of the latter provision are general in their application and are not confined to the periods of limitation prescribed in the Limitation Act, Section 48, Civil P.C., will be controlled in its operation thereby; and a decree-holder will be entitled to exclude, in the computation of the period of 12 years prescribed in Section 48, Civil P.C., the period during which the execution of his decree may have been [stayed by injunction; that is provided Section 48 "prescribes a period of limitation" within the meaning of Section 15, Limitation Act. In the decision of the matter referred to this Bench therefore two questions fall to be considered : (1) Is Section 15, Limitation Act, confined in its operation to periods of limitation prescribed by the Act or by Schedule 1 thereof and (2) does Section 48, Civil P.C., "prescribe a period of limitation?"