B.N.Maitra, J. - (1.)When the execution proceedings were pending, the applicants, who are heirs of the judgment-debtors, filed a Misc. Case under Section 47 of the Civil P. C. The objection was twofold. It was alleged that previously the execution case was dismissed for default. No prayer was made by the decree-holders to vacate that order or to restore the execution case to file. The Court suo motu vacated the order and restored the execution case to its original number. So an illegal order was passed. Secondly, the judgment-debtor died on the 21st January, 1966. whereas the application for substitution was filed by the decree-holders on the 15th May, 1978. So the allegation was that the execution case became time-barred. The learned Subordinate Judge rejected both the contentions. Hence this revisional application.
(2.)In this Court also those two objections have been pressed. It has been first stated that the order-sheet shows that on the 2nd September, 1967. decree-holders were directed to show cause why the execution case would not be struck off because no steps had been taken. So the case was fixed on the 20th Sep., 1967. for orders. On that date the decree-holders took no steps or showed no cause. So the execution case was struck off. It has been contended that since the execution case was struck off, it was the duty of the decree-holders to file an application under Section 151 of the Civil P. C. The well-known case of Mulraj v. Murti in has been cited. Secondly, it has been stated that the judgment-debtor died on the 21st January, 1466. But the application for substitution was put in as late as the 15th May, 1978. Reference has been made to the Patna decision, reported in (1921) 62 Ind Cas 52, to show that the application for substitution has to be submitted within a reasonable time. Where the judgment-debtor dies, the decree-holder should get at least six months within which to bring the legal heirs on record, on the analogy of Article 177 of the Schedule I of the Limitation Act of 1908. Reference has also been made to the well-known Special Beach decision of Asmat Ali v. Mujahar Ali in (1948) 52 Cal WN 64 : (AIR 1948 Cal 48) to show that since there is no period of limitation within which a non-notified co-sharer of a holding is to file an application for pre-emption under Section 26-F of the Bengal Tenancy Act, such application has to be filed within 3 years. But in this case the application for substitution was filed more than 3 years after the judgment-debtor died. Reference has also been made to the case of Kerala S. E. Board in to show that Article 137 of the Limitation Act of 1963 applies to any petition or application filed "under any Act". Since the application for substitution was not filed within 3 years of the judgment-debtor's death, the Court will have no hesitation in stating that when the application for substitution was filed on the 15th May, 1978, the execution case became time-barred.
(3.)The learned Advocate appearing on behalf of the opposite parties has referred to Article 136 of the new Limitation Act and stated that the period of limitation is 12 years.