D.K. Mahajan, J. - (1.) THIS is an appeal under Clause 10 of the Letters Patent and is directed against the decision of the learned Single Judge reversing on appeal the decision of the executing Court. The executing Court held that the execution application was barred by time. This view did not find favour with the learned Single Judge who was of the opinion that the execution application was within time by reason of an application dated the 14th of March, 1955, and filed on 16th of March, 1955, for drawing up the decree and for determination of the amount of court -fee payable for the purpose of preparation of the decree.
(2.) TO appreciate the controversy, it will be proper to briefly set out the relevant facts. A suit was filed by Chandu Lal and Bhagwat Sarup against their coparceners Ram Chand, Lakhpat Rai and Shiv Narain, for dissolution of partnership and rendition of accounts. A final decree in this suit was passed on the 14th of April, 1952. The operative part of the judgment is as follows: So, a final decree for Rs. 7,871/7/3 with costs is passed in favour of the plaintiffs and for Rs 2,728/3/ - with costs in favour of Shiv Narain, defendant No. 3, against defendants 1 and 2. The liability of Ram Chander defendant 1 is to the extent of Rs. 2,626/11/9 and proportionate costs and of Lakhpat Rai defendant 2 to the extent of Rs 8,572/14/6 and proportionate costs. The decree shall not be drawn up till deficiency in court -fee is made good. File to be retained for 10 days for that purpose. It seems that the decree -holders took no steps to make good the court -fee for some time and the first step that was taken in this behalf was taken on the 16th of March, 1955, i. e. within three years of the decree. An application was made by defendant 3 and was to this effect that a decree be prepared and it be determined how much court -fee has to be paid for the drawing up of the decree. On this application the Court ordered that the file be summoned. On two occasions, the hearing was adjourned because the file did not reach the Court. The file was received on the 21st of July, 1955, and the Court was of the view that the question of court -fee required determination. On the question of Court -fee, arguments were heard on the 5th of August, 1955, and on that day the Court passed an order that the Court -fee be paid on the amount decreed in favour of defendant 3 and the amount of court -fee was determined at Rs 247/8/ -. The defendant was directed to deposit this amount by the 5th of October, 1955. The court -fee was paid by that date and the decree was thereafter prepared. The present application for execution was filed on the 6th of December, 1955. This application is admittedly beyond three years of the date of the judgment but is within three years of the application filed on the 16th of March, 1955. Therefore, the sole question that arose for determination was whether the application of 16th of March, 1955 was step -in -aid of the execution within the meaning of Article 182(5) of the Limitation Act. Article 182(5) of the Limitation Act is in these terms: - 182. For the execution of a decree or order of any not provided for by article 183 or by section 48 of the Code of Civil Procedure, 1908 Three years; or where a certified copy of the decree or order has been registered, six years. 5. (Where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step -in -aid of execution of the decree or order."
(3.) THE executing Court held that this application of 16th of March, 1955 did not amount to a step -in -aid of execution of the decree. This view was not accepted by the learned Single Judge who relied on a decision of this Court in Siri Ram v. Jagan Nath, A.I.R. 1957 P&H. 66, with the result that the decision of the executing Court was set aside and the execution application dated 5th of December, 1955, was held to be within limitation. It is against this decision that the present appeal under Clause 10 of the Letters Patent is directed.;