DWIVEDI - (1.) KARIYA and his wife Seva purchased the house in dispute by a registered deed on 20/04/1905. KARIYA died in 1936 leaving behind him Seva and Ram Charan, his son. On 16/08/1951 Ram Charan mortgaged the house to Prem Raj (the appellant). Prem Raj obtained a preliminary decree for foreclosure on 16/08/1952 and also the final decree on July 16, 1953. In the meanwhile on 7/03/1952, Seva gifted the entire house to Prakash Chandra, son of Ram Charan, the respondent. Fortified by this gift, Prakash Chandra frustrated several attempts of the appellant to get possession of the house in execution of his decree. He made three unsuccessful attempts to execute the decree till the end of 1954. He made the fourth attempt on 25/04/1956. Shortly thereafter, on 7/12/1956, Prakash Chandra instituted a suit against the appellant and his father Ram Charan for a declaration that the preliminary and final decree for foreclosure in favour of the former were not binding on him and for a perpetual injunction restraining the appellant from taking possession of the house in execution of the aforesaid decree. The suit was dismissed on 25/11/1958. He filed an appeal and obtained an order staying execution of the decree on 31/12/1958. The appeal court partly allowed his appeal on 21/10/1959. It was held that he was the owner of a half share in the house by virtue of the gift deed from Seva in his favour. So the appeal court issued an injunction restraining the appellant from executing his decree with respect to a half share in the house. The appellant filed a second appeal in the High Court of Madhya Pradesh against the judgment of the appeal court. Prakash Chandra also filed a cross-objection in respect of his claim for the remaining half share in the house. Both the appeal and the cross-objection were dismissed by the High Court on 1/01/1962.
(2.) TURNING back to the fourth execution application filed by the appellant, it was dismissed on 23/06/1956. The fifth execution application was filed by the appellant on 28/07/1964 for possession over half of the house. The respondent objected to this application on the ground of limitation. The objection was disallowed by the execution court as well as by the appeal court. It was, however, upheld by the High Court of Madhya Pradesh. So the application was dismissed as time-barred. Hence this appeal. The sole argument of the appellant in the High Court was that Section 15 Limitation Act, 1908 (hereinafter called the Act) saved limitation. The High Court rejected this argument. The order of the appeal court staying execution of the decree remained in force only for a limited period between 31/01/1958 and 21/10/1959. That time should be excluded in computing limitation under Section 15; but that alone would not save limitation. Before us, counsel for the appellant has not placed reliance on Section 15 to save limitation. His arguments now are : 1. Limitation is saved by clauses 1, 2 and 4 of Article 182. 2. Limitation is saved by Clause 5 of Article 182; 3. The fifty application for execution was really an application to revive the fourth execution proceeding and therefore, it was not time-barred.
(3.) WE shall consider these arguments in seriatim. But before we do so, it is necessary to read the relevant provisions of Article 182: JUDGEMENT_1_2_1974Html1.htm Regarding argument No. 1 : We are unable to appreciate how the High Court decree in Prakash Chandra's suit will give a fresh starting point of limitation to the appellant under cl. 1 of Article 182. Clause 1 is to be read against the backdrop of the words in the first column "for the execution of a decree". so the date of the decree (whether of the first court on of the appellate court) which is put in execution furnishes the starting point of limitation.;