KUNWAR BAHADUR SINGH Vs. SHEO SHANKAR

JUDGEMENT

(1.) The appellant in this case is the judgment-debtor. He objected to the execution of the decree against him, pleading that the application for execution was barred by limitation. This objection has been overruled by the lower Court although it was upheld by the Court of first instance. So the judgment-debtor has come up to this Court in second appeal, repeating the same objection.

(2.) The decree sought to be executed was passed ex parte, on 4th November 1933. The defendant applied under Order 9, Rule 13, Civil P C., to have it set aside. This application was dismissed on 30th October 1934, and the appeal from the order dismissing this application was itself dismissed on 30th January 1936. The first application for execution was made on 12th November 1941, and was dismissed for default, eight days later, on 20th November 1941. The second application for execution, which has resulted in this appeal, was made on 3rd October 1944. It would be in time under Article 182 (5), Limitation Act, if the first application for execution was in time, and it would be beyond time, if that application itself was beyond time, for in that case it would not be an application made in accordance with law, capable of giving rise to a fresh period of J imitation.

(3.) It is undisputed that in computing the period of limitation for the first application for execution a period of three years, during which the Temporary Postponement of Execution of Decrees Act (Local Act X [10] of 1937) remained in force, has to be excluded. It is obvious, therefore, that it was within time when made, if limitation for it is to be reckoned from 30th January 1936, the date when the appeal against the order under Order 9, Rule 13, Civil P. C., was dismissed. It is equally obvious that it was beyond time, if limitation for it is to be reckoned from 4th November 1933, the date of the decree. It is further obvious that the limitation is to be reckoned from this last mentioned date unless Clause (2) in column III of Article 182 of schedule I, Limitation Act (hereinafter referred to as Article 182 (2)') applies to the case.