UMA SHANKAR MEHROTRA Vs. KANODIA BROTHERS
LAWS(ALL)-1965-2-7
HIGH COURT OF ALLAHABAD
Decided on February 18,1965

UMA SHANKAR MEHROTRA Appellant
VERSUS
KANODIA BROTHERS Respondents


Referred Judgements :-

BOMBAY COMPANY LTD.,KARACHI V. KAHAN SINGH [REFERRED TO]
BHAGWAN MANAJI V. HIRAJI PREMAJI [REFERRED TO]
JAGANNATH JUGAL KISHORE V. CHIMANLAL CHOWDHURI [REFERRED TO]
SEOOMAL KHEMCHAND V. LAHNIBAI [REFERRED TO]
RAMNATH GOENKA VS. AMARCHAND AND MANGALDAS [REFERRED TO]



Cited Judgements :-

ROOPRAO SINGH WASUDEO KIRAD VS. SURAJMAL SINGH LACCHIRAMSINGH [LAWS(BOM)-1989-7-26] [REFERRED TO]


JUDGEMENT

D.S.Mathur, J. - (1.)THIS is a revision under Section 115, C. P. C. by Uma Shankar Mehrotra against the order dated 5-12- 1962 of the First Civil Judge of Kanpur, framing two issues for trial and determination as necessary under Order XXI, Rule 50(2). C. P. C.
(2.)THE material facts of the case are that Messrs. Kanodia Brothers Kanpur, obtained an ex parte decree against Messrs. S. Varma, Kanpur, for the recovery of a sum of Rs. 11,500. Messrs. S. Varma defendant, was to be served through the proprietors. Bhupat Prasad and Uma Shankar Mehrotra. THEy put in appearance, but Uma Shankar Mehrotra denied to be a partner or proprietor of the defendant-firm. THE ex parte decree was passed on 6-7-1955. It was on 27-7-1957 that the decree-holder applied. For execution of the decree by the attachment of the salary of Uma Shankar Mehrotra on the supposition that the case was covered by Clauses (b) and (c) of Order XXI, Rule 50(1), C. P. C. THE executing court recorded the finding that without the grant of the leave under Sub-rule (2) of Order XXI, Rule 50, C. P. C., the execution could not proceed against Uma Shankar Mehrotra and this order was eventually maintained.
It was thereafter on 29-8-1961 that the decree-holder made a fresh application for execution of the decree by the attachment of the salary of Uma Shankar Mehrotra and at the same time moved an application under Order XXI, Rule 50(2), C. P C. for the grant of leave to proceed against Uma Shankar Mehrotra, on the ground that he was a partner in the defendant- firm, Messrs. Section Varma. The learned Civil Judge entertained this application and framed the following two issues: (1) Whether Sri Uma Shankar Mehrotra is a partner in the firm Messrs. Section Varma? (2) Is the decree-holder entitled to cause the decree to be executed against Sri Uma Shankar Mehrotra as such? (3) Uma Shankar Mehrotra has come up in revision against this order on the ground that the application under Order XXI, Rule 50(2), C. P. C. was barred by limitation. It is contended that such an application shall be governed by Article 181, and not Article 182 of the Limitation Act. A new ground is also sought to be raised in the revision, namely, that even if the application is governed by Article 182, it is barred by limitation considering that the decree-holder is not entitled to the extension of limitation by virtue of his having moved the execution application on 27-7-1957.

The decision on the new point, though relating to limitation, depends upon facts also, and it shall be proper to leave this question open, all the more, when it is open to Uma Shankar Mehrotra to raise at a proper stage the question whether the Second execution application moved on 29-8-1961 is or is not barred by limitation.

(3.)THE point for consideration in this revision, therefore, is whether an application for leave under Order XXI, Rule 50(2), C. P. C., if governed by the provisions of the Limitation Act, comes within the purview of Article 181 or Article 182 of the Limitation Act. In case such an application is governed by Article 181, it shall be clearly time-barred as the application was made more than three years after the accrual of the right to apply; but if the application is governed by Article 182 or there is no limitation for such an application it shall be maintainable provided that the execution application is not barred by limitation.
Article 181 is a general clause applicable to applications for which no period of limitation is provided elsewhere in the First Schedule of the Limitation Act or by Section 48 of the Code of Civil Procedure, 1908. This Article shall thus come into operation only if Article 182 is not applicable, and the application cannot be made at any stage of the execution of the decree.

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