JAGAT NARAYAN, J. - (1.) THIS is a decree-holder's appeal against an order of the District Judge Jaipur city holding that his execution application was barred by limitation.
(2.) ONE Bala Bux obtained a decree for Rs. 12,994/- against the Mahant of Thikana Galtaji on 5. 1. 1913 from the Adalat Diwani Jaipur. The decree was assigned to the predecessor of the present decree-holder Bhawani Shankar. The decree was put into execution by Bachat under the Jaipur Bachat Rules 1945 framed under Order 21 Rule 30 of the Jaipur Code of Civil Procedure. Rule 30 of Order 21 of that Code ran as follows - "every decree for the payment of money including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both. Provided that the High Court may, either of its own motion or otherwise, order execution of such a decree by Bachat in accordance with the rules framed by the Government. " Under the Jaipur Bachat Rules the court of the District Judge was the competent court to execute the decree. Some amount had been deposited by the judgment-debtor in the Bachat proceedings. The court passed an order on 20. 12. 50 for payment to the decrees holder after preparation of Batwara. The Batwara was prepared by the office and was put up before the Judge on 22. 12. 50 who signed it after scrutinising it on that date. On 26. 12. 50 the decree-holder filed an application for payment in accordance with the Batwara. A sum of Rs. 337. 6. 0 was paid to him on 27. 12. 50. The Jaipur Civil Procedure Code was repealed and the present Civil Procedure Code was enacted under the Rajasthan Code of Civil Procedure (Adaptation) Ordinance No, 5 of 1950 which came into force on 12. 1. 50. Secs. 14 and 15 of that Ordinance provided - S. 14. "repeat and Saving - (1) The Code of Civil Procedure in force in all the covenanting States are hereby repealed. (2) The repeal shall not, however, affect anything done or action taken under any such Code or law before the commencement of this Ordinance. (3) Notifications published, places appointed, scales prescribed, appointments made and powers conferred under any such Code or law hereby repealed shall, so far as they are consistent with the provisions of the Indian Code as hereby adapted to Rajasthan, have the same effect and force as if they had been respectively, published, made and conferred under or in pursuance of this Ordinance. (4) In every instrument, enactment or notification made, passed or issued before cornmencement of this Ordinance, in which reference. is made to or to a provision of any Code or law hereby repealed, such reference shall, so far as may be practicable be taken to be made to or to the corresponding provision of the Indian Code as adapted to Rajasthan by this Ordinance. " Sec. 15 - ''interpretation" - The provisions of the General Clauses Act, 1897, of the Central Legislature shall mutatis mutandis apply so far as may be, to this Ordinance and to the Indian Code hereby adapted in the same manner as they apply to a Central Act of the Indian Legislature. " The Bachat file was closed and consigned to the record room on 22. 1. 51. On 2. 1. 54 the decree-holder filed an application for the execution of the decree in the conrt of the District Judge. The judgment-debtor filed an objection that it was barred by limitation. This objection was upheld by the District Judge. The contention of the decree-holder before the learned District Judge was that the period of three years under Art. 182 of the Limitation Act should be computed from 27. 12. 50 when money under the decree was last paid to him by the Bachat court. It may be mentioned here that in 1953 the court of the District Judge remained closed for winter vacations from 24. 12. 53 to 1. 1. 54. The present execution application was filed on the reopening of the court after the winter vacations on 2. 1. 54. The learned District Judge was however of the opinion that t|me under Art. 182 is to be computed from 22. 12. 50 when the Batwara was signed by the Bachat court. He obviously relited on rule 36 of the Bachat Rules which ran was follows - "each decree included in the Bachat shall, during the continuance thereof, be deemed to be under execution so long as it is not satisfied in full; and every apportionment of the Bachat instalment towards it in the Batwara under the signature of the Presiding Judge shall be a stepin aid of its execution so as to save it from being barred by time; Provided that in respect of decrees which have been barred from sharing in the rateable distribution under r. 33 limitation shall commence to run from the date of the publication of the notice required by note 2 of that rule. " The first contention on behalf of the decree-holder in this Court is that time under Art. 182 should be computed from 22. 1. 51 when the Bachat file was consigned to the record room by an order of the executing court. Under rule 21 of the Bachat Rules the Bachat file shall be deemed to be pending until satisfaction has been had of all the decrees included in the Bachat, but yearly bundles of all such files may be made and kept separate. On 22. 1. 51 the following order was passed - "money not taken by the decree-holder should be deposited in Amanat and the file should be consigned to the record. " The second contention put forward on behalf of the decree-holder is that the application dated 26. 12. 50 for the payment of money realised in execution was a step-in-aid of execution under clause 5 to Art. 182.
(3.) THE first question which arises for determination is whether the Jaipur Bachat Rules continued in force after the repeal of the Jaipur Civil Procedure Code and the enforcement of the present Code of Civil Procedure. It was held in State of Punjab Vs. Mohan Singh (1) that sec. 6 of the General Clauses Act would be applicable even when the repeal of an enactment is followed by fresh legislation unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. THE Jaipur Bachat Rules have not been expressly repealed so far. THE execution of a decree under these Rules cannot be said to be incompatible with the present Code of Civil Procedure. Rule 30 of Order 21 ~ of the present Code of Civil Procedure is exactly the same as the first part of Rule 30 of Order 21 of the Jaipur Civil Procedure Code. Under that Code a decree for payment of money could be executed in the manner in which it can be now executed and decrees against certain classes of grantees to whom the Bachat Rules were applicable could also be executed under the Bachat Rules. THE two modes of execution stood together side by side under the Jaipur Civil Procedure Code. THEy cannot be regarded as repugnant to one another. THE effect of sec. 6 of the General Clauses Act therefore is that the Bachat Rules continued in force even after 25. 1. 50. No fresh applications could however be made for execution in Bachat after 25. 1. 50. But the judgment-debtors and decree-holders whose decrees were being executed by Bachat could continue to be executed even after 25. 1. 50 under the Bachat Rules till they were fully satisfied. This is also the effect of sec. 14 of the Ordinance referred to above. But the order passed by the Bachat court on 22. 1. 51, directing that the money not withdrawn by the decree-holder be deposited in Amanat and the file consigned to the record room, cannot be regarded as a final order passed on an application made by the present decree-holder or step-in-aid of execution taken by the present decree holder. So far as this decree-holder is concerned nothing remained to be done after the amount realised from the judgment-debtor in Bachat and payable to him on pro rata distribution had been paid to him. The order was passed by the court and cannot be regarded as a step-in-aid of execution as such a step is to be taken by the decree-holder. The second question which arises for consideration in the present case is as to whether an application by the decree-holder for withdrawing the money realised in execution is a step-in-aid of execution of the decree within the meaning of clause 5 to Art. 182. On this question there is a conflict of judicial opinion. According to the following decisions it is a step-in-aid of execution: - Dharam Raj Kuar Vs. Lachhman Bhuj A. I. R. 1916 Oudh 153 (2), Mulchand Vs. Jamanbi A. I. R. 1925 Bombay 443 (3), Latafat Ali Khan Vs. Kalyan Mal A. I. R. 1938 All. 210 (4) Sankera Menen Vs. Sundara Ayyai (AIR 1943 Madras 129 (5) A contrary view was taken in - Amolak Chand Vs. Hoshiar Singh A. I. R. 1938 Lahore 138 (6), Noorul Hoda Vs. Nohar Prasad A. I. R. 1941 Patna 428 (7), I am in respectful agreement with the former view on the ground that it is more in consonance with the general principle that Art. 182 should receive a fair and liberal and not a technical construction so as to enable the decree-holder to reap the fruits of his decree. ;