BHANWARJI PADAN SINGH Vs. PHOOLCHAND GENDALAL

JUDGEMENT

(1.) THE judgment -debtor has filed this appeal against the order of the lower appeal Court affirming the order of the Court of first instance dated 25 August 1958 by which the execution application disposed of on 27 March 1949 was revived.

(2.) THE decree -holder filed his second execution application in time on 28 March 1948. The judgment -debtor applied to the Debt Conciliation Board which discharged the debt on 12th August 1948. On being informed of this, the executing Court, on 27th March 1949, took the view that no further action could be taken in those proceedings and directed that the case be struck off the register and the record be consigned to the record -room. However, on the application of the decree -holder dated 27th June 1950, the executing Court, by an order dated 5th March 1952, revived the debt. Thereupon, the decree -holder's application dated 26th May 1952, the old execution application was restored without notice to the judgment -debtor. When the judgment -debtor was subsequently noticed, he objected to the restoration. His objection was however dismissed by the order which was challenged in the first appeal.

(3.) AS I have indicated earlier, the executing Court did not dismiss the execution applications as fully or partly satisfied. In a carefully worded order in Urdu, it was stated that since no further action could be taken in those proceedings in view of the order of the Board, the case be struck off the register and the record be consigned to the record -room. In passing that order, it was postulated that the discharge of the debt could be regarded as unjustified or set aside and the proceedings could then be revived. In my view, this was not a final order and did not dispose of the execution case. It was unlike the order passed in Mohammad Taqi Khan v. Rajaram AIR 1936 All 820. (a case relied upon by counsel for the judgment -debtor) where the execution case was struck off as partly satisfied. Here there was an obstacle to the execution of the decree, which had to be removed before the case could proceed further. The test to be applied for the principle of revival is that the interruption to the execution proceeding is due to an intermediate order which was afterwards set aside or the execution proceedings were rendered infructuous by some obstacle and the interruption was not occasioned by any fault or latches on the part of the decree -holder: Sagarbai v. Ratanlal 1953 NLJ 590 : AIR 1952 Nag 322. It is also well established that where an execution petition can be deemed not to have been finally disposed of and treated in the eye of law as still pending, it can be revived: Sundaramma v. Abdul Khadar AIR 1933 Mad 418 : ILR 56 Mad 490 (FB). The lower appeal Court was therefore right in regarding the execution application, treated as disposed of on 27th March 1949, as properly revived.