HIGH COURT OF RAJASTHAN
Referred Judgements :-
KIRTYANAND V. PIRTHICHAND
GANESHI LAL V. IMTIAZ ALI
TULSI RAM V. E. D. SASSOON AND CO. LTD.
WALCHAND V. YESHWANT
DURGA PAL SINGH V. PANCHAM SINGH
FIRM RAMGOPAL BHUTADA V. SIDRAM AUNAYYA
FIRM DAULAT RAM VIDYA PARGASH V. SODHI GURBAKSH SINGH
MANICKAM CHETTIAR VS. RAMASWAMI CHETTIAR
DEORAO SURYABHANJI VS. RAMCHANDRA AMRUTLAL RATHI
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I.N.Modi, J. -
(1.)This is a judgment-debtor's second appeal in an execution matter.
(2.)The material facts may be briefly stated as follows. The respondent decree- holder obtained a money decree against the judgment-debtor from the Court of the Judicial Superintendent Phalodi on the 28th November, 1939. This decree was carried in appeal to the District Judge No. 3 Jodhpur which was dismissed on the 16th April, 1940. The decree-holder applied for execution of this decree for the first time on the 2nd December, 1940. This application is still pending. On the 26th July, 1952, the application out of which the present appeal arises was made for the attachment and sale of the judgment-debtor's right, title and interest in a house and Nohra situate in Amrani-pura in the town of Phalodi. The judgment-debtor objected to this application on the ground of limitation under section 48 of the Code of Civil Procedure. This objection was dismissed by the executing Court by its order dated the 20th October, 1956, as learned counsel for the judgment-debtor stated before the Court that he did not want to press it. The judgment-debtor preferred an appeal against this order before the learned District Judge, Jodh-pur who also dismissed it. The main finding of the learned District Judge was that the decree- holder's application dated the 26th July, 1952, which according to the learned Judge was, to all intents and purposes, a fresh application was saved from limitation by a notification of the former Jodhpur State, dated the 23rd August, 1939, published in the Jodhpur Government Gazette dated the 26th August, 1939, read with another notification dated the 7th September, 1940, published in the Jodhpur Government Gazette dated the 7th September 1940, by which the period between the 23rd August, 1939, and the 15th September, 1940, has to be excluded from computation while applying section 48 of the Civil Procedure Code to the present case. Aggrieved by this Order of the learned District Judge, the judgment-debtor has come up in appeal to this Court.
(3.)The question which falls for determination in the present appeal is whether the objection as to limitation raised by the judgment-debtor to the decree- holder's application dated the 26th July, 1952, is well founded. In deciding this matter, I shall assume for the purposes of the present appeal that the decree- holder's application dated the 26th July, 1952, was a fresh application and not a mere continuation of the execution application dated the 2nd December 1940, which has still not been finally disposed of and is pending in the executing court.
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