GIRDHARI LAL Vs. RAM CHARAN LAL

JUDGEMENT

(1.) This appeal arises out of an execution proceeding and the sole question for consideration is whether the application is barred by limitation. It appears that a decree was obtained by Ram Charan against Girdhari Lal, the predecessor of the present appellant, and certain other parsons on the 30 July 1910. The last application for execution was made on the 30 July 1921; and in execution of that decree certain ancestral property was ordered to be sold. The proceeding connected with the sale were transferred to the Collector under Section 68 of the Civil P.C. The Collector fixed a date for holding the sale but on that date there was no bidder; and as the decree-holder was not present at the time to ask for further action he sent the papers back to the Court which had directed the sale. The papers reached the Court on the 24 February 1923 and it passed an order on She same day striking out the execution proceeding for default.

(2.) On the 26 February 1923 the decree-holder made an application stating that he was present on the date the auction was held and had just gone outside for a short time when the sale officer passed an order returning the papers. He prayed that the papers may be sent back to the Collector for proceeding with the sale. The Court thereupon passed an order in terms of the application directing further proceedings in connexion with the sale. While the sale proceedings re-started by the Collector were pending, an objection was filed by Mt. Parbati, one of the judgment-debtors that the order reinstating the proceedings was irregular, and that the decree was really barred by time. That objection was unsuccessful; and it was held by the Court, which had passed that decree and before which the execution proceeding was pending, that it had power to revive the previous execution proceeding which had been dismissed for no default of the decree-holder and without his knowledge; and that order was afterwards upheld on appeal.

(3.) Girdhari Lal, another judgment-debtor, then intervened and filed the objection which has given rise to the present appeal, urging that the application for execution was barred by time and that the order of the Court sending the papers again to the Collector after the Collector had returned them was contrary to law. The Courts below have disallowed that objection, relying on the decisions in Rahim Ali Khan V/s. Phul Chand (1896) 18 All 482 and Ram Sarup V/s. Dasrath Tiwari (1911) 33 All 517. The views taken in these cases was that where an application for execution had been made within the period of limitation and granted, that is execution had been ordered in accordance with the prayer of the decree-holder, the right of the decree-holder to obtain execution will not necessarily be defeated, if by reason of objections on the part of the judgment-debtor or action taken by the Court or other cause, for which the decree-holder was not responsible, the final completion of the proceedings in execution initiated by the application could not have been obtained within the period provided by law; and that further applications of the decree-holder to the Court executing the decree to go on from the point where the execution proceedings had been arrested and to complete the execution of his decree would be regarded as applications merely ancillary to the substantive application and no question of limitation under Section 320 of the old. Civil P.C. would, in those circumstances, arise.