- (1.) Dr. Shiv Nand obtained a money decree against Harbachan Singh and Jagdev Singh on 30-11-1940. The decree-holder later died, leaving two sons, Pt. Hari Gopal and Pt. Siri Gopal. Hari Gopal made a gift of his half share in the decree in favour of Lajpat Rai High School, Sangrur, by means of a gift deed dated 75-1951. The Managing Committee of the aforesaid school and Siri Gopal sued out execution of the decree against the judgment-debtors. Earlier they had realised Rs. 300/- from the judgment-debtors. In execution proceedings they got attached some agricultural land belonging to the judgment-debtors on 2711-1953. The judgment-debtors objected to the execution, pleading that the attached land was ancestral and therefore, could not be sold in execution of the decree.
(2.) They also alleged that the decree was passed against them in their capacity as legal representatives of their father, Harbaksh Singh, who had incurred the debt and that the execution application was barred by time. They also attacked the transfer of the decree in favour of Lajpat Rai High School, Sangrur, as being invalid and further challenged the right of the decree-holders to sure out execution without obtaining a succession certificate. On the pleadings, the following issues were framed: (1) Whether the decree, which is sought to be executed, was passed against the judgment-debtors as legal representatives of Harbaksh Singh ? (2) Whether the attached land is ancestral qua the judgment Harbachan Singh Harbaksh Singh and Anr. vs. L. Sita Ram L. Kanshi Ram and Ors. (... Page 2 of 4 debtors ? (3) Whether the execution application is within in time ? (4) Whether the present decree-holders could not file this execution application without obtaining a succession certificate ? (5) Whether the transfer of the decree in favour of the present decree-holders is invalid ? (6) Relief. The executing Court disallowed the objections of the judgment-debtors and on appeal the order of the executing Court was confirmed.
(3.) On second appeal the only question agitated by the counsel for the appellants relates to the question of limitation covered by issue No. 3. The counsel has contended that the decree was passe din 1940 and the present execution application had been filed on 29th of November 1952, which prima facie is barred by time. In the executing Court this objection was repealed by the learned Sub-Judge by relying on a copy of the order dated 15th of March, 1952, which showed that a previous application for execution was dismissed, on that day and therefore under Article 182 of the Indian Limitation Act, the present execution petition was well within limitation. Before the lower appellate Court, as observed in its order dated 12th of December,, 1956, only a faint attempt was made by the counsel for the appellants to attack the findings of the Court of first instance. But in that Court also relying on the order dated 15th of March, 1952, it was held that the present application for execution was within limitation. Before the Court of first appeal an attempt was made to urge that the previous application, which was disposed of by the order dated 15th of March, 1952, had not been filed within limitation. This point was not permitted to be raised by the Court for the first time in appeal because such an objection had not been raised in the executing Court. The learned District Judge has observed in his judgment that since no objections had been raised that the previous application had been filed beyond limitation, it was not incumbent on the decree-holders to produce any material for the purpose of showing that the previous application was within limitation.;