RANAWAT, J. - (1.) THIS is a second appeal by one of the decree-holders. Suraj Bhan, from the judgment of the District Judge, Alwar, dated the 10th of January, 1948, by which an execution petition filed by the decree-holders for execution of their decree was held to be time-barred.
(2.) THE facts of this case are that Suraj Bhan and others filed an execution petition on the 22nd of August, 1934, for execution of their decree, dated 30th October, 1925, for an amount of Rs. 2200/- with costs. THE decree was originally passed against Ramrichpal, and after his death his legal representatives were brought on the record. Some house property was attached. Shri Govind filed an objection petition on the ground that the property belonged to him. THE objection petition was allowed on the 27. 11. 1936, and consequently the property was released from attachment. THEreafter the decree-holders continued the execution application in connection with a Biswa belonging to the judgment debtor. THEy also filed a suit for declaration that the property, which had been released from attachment, belonged to the judgment-debtor, and was liable to be sold in execution of the decree. THE suit was decreed by the trial court on the 14th of February, 1938, but on appeal the District Judge having set aside the first court's judgment remanded the case for fresh decision. THEreafter on the 19th of September, 1939, the trial court dismissed on suit; but on appeal the suit was decreed on the 18th of March, 1940. A second appeal was filed in now defunct Alwar High Court, and on the 18th of December, 1941, the judgment and decree of the Court of District Judge were confirmed. In the meanwhile, the execution petition was dropped on the 19th of October, 1937, as the decree-holders expressed their inability to furnish the addresses of some of the judgment-debtors, in connection with the proceedings in execution relating to the attachment of the Biswa belonging to the judgment-debtors. After the decision of the suit of the decree-holders an application was moved on the 30th of April, 1945, for revival of the execution proceedings. THE Judgment-debtors raised an objection on the 15th Dec, 1954, that the application was time-barred, as it had been presented after three years from the date of the High Court. THE court executing the decree disallowed the objection, and proceeded to execute the decree. THE judgment-debtors went in appeal to the Court of the District Judge, and the learned District Judge held that the execution petition was time-barred. Suraj Bhan one of the decree-holders, has come in appeal against the said order of the District Judge. It is urged on behalf of the appellant that Art. 181 of the Limitation Act is not applicable to an application for revival of the execution proceedings, especially of the nature of the present application. Reliance is placed on the following decisions in support of this point - Bhan Datta Upadhia and another vs. Mst. Tulsa Kuer (1) (AIR 1940 All. , 151.); Pendurang Dewaji and others vs. Rameshwar Motiram (2) (AIR 1948 Nag. , 284.); Babulal and others vs. Ramjidas (3) (AIR 1950 M. B. , 71.); Banarsi Prasad Chau-dhury vs. Kirtyanand Singh Bahadur and others (4) (AIR 1934 Patna, 532.); Rudra Narain Guria vs. Pachu Maity (5) (ILR XXIII Cal. , 437.); Hiralal and another vs. Punjab National Bank (6) (ILR XXIII Cal. , 437.); Chhattar Singh and another vs. Kamal Singh and others (7) (AIR 1927 All. 16.) (AIR 1935 Lah. , 911.); and Qamar-ud-din Ahmad vs. Jawahirlal and another (8) (ILR XXVII AIL, 334. ). On behalf of the judgment-debtors it has been urged that Art. 181 of the Limitation Act governs the petitions relating to the revival of the execution applications. The decree-holders remained silent for more than three years after the judgment of the High Court, and, therefore, they are not entitled to move the court for revival of the execution proceedings. In support of this proposition Desraj Singh and others vs. Karam Khan (9) (ILR XIX All. , 71.) has been cited. Opinion of Mr. U. N. Mitra at page 1153 of his Law of Limitation and Prescription, Seventh edition, has also been referred to. It not contended that the fourth execution application filed by the decree-holders in this case on the 22nd of August, 1934, was not presented within time. That application, it is said, was finally disposed of on the 19th of October, 1937, when the court executing the decree dropped the proceedings on account of the decree-holder's failure to furnish the addresses of some of the judgment-debtors. The plea of the judgment debtors is that the order, dated 19th October, 1937, should be construed as one disposing of the execution petition of the 22nd of August, 1934. It may be noted here that the order of 19th October, 1937, specifies that the record may be consigned to the Record Room for want of recovery. In this case, at first attachment of certain house property was made, and as has already been said above, on an objection of Shri Govind the attachment was set aside, and the proceedings then continued for execution of the decree by attachment of a Biswa, which was alleged to be of the judgment-debtors, and finally the proceedings came to an end, as the decree-holders had failed to furnish the addresses of the judgment-debtors. By that time, the decree-holders and instituted a suit under O. XXI, r. 63, of the Code of Civil Procedure, and they did not, therefore, intend to pursue the execution petition. The petition of the decree-holders of 30th April, 1945, even though it is in the form of a fresh execution petition, must, be treated to be an application for revival of the execution proceedings. In Qamar-ud-din Ahmad vs. Jawahir Lal (8), the facts were that on the 24th August, 1888, an application was made for execution of a decree, and on 18th December, 1888, the execution was allowed to proceed. Later on, on the 29th November, 1989, it was ordered that the record be transferred to the Court of the Collector for execution. On the 3rd of December, the decree-holder made a default in depositing certain process-fees for transferring the record on the Court of the Collector, and it was order that in default of prosecution on the part of the decree-holder the record be not sent to the Collector's Court. In the meantime, on the 15th of February, 1889, an appeal had been preferred to the High Court from the order of 18th Dec. ,1888, allowing execution to proceed, and the High Court reversed that order on the 7th of January, 1890, but on appeal to the Privy Council, the order allowing execution was restored on the 12th December, 1894. Thereafter the decree-holder filed an application for execution, and it was held by their Lordships of the Privy Council that: - "an application for execution made on 23rd November, 1897, was one to revive and carry through a pending execution suspended by no Act or default of the decree-holder, and not an application to initiate a new one, and was therefore not barred by limitation. " It was further held that order of 29th November, 1889, was one in aid of execution and that of 23rd December, was in no sense a final order. In this case the attachment made in course of the execution application of the 22nd August, 1934, was set aside, when an objection petition was allowed by the first court on the 27th November, 1936, and the execution proceedings thereafter should by deemed to have been suspended in so far as the proceedings relating to the attachment of that property was concerned. Nevertheless, the execution proceeding were continued by the decree-holders in connection with a certain Biswa of the judgment debtors, which also terminated on the 19th of October, 1937, when the decree-holders expressed their inability to furnish the addresses of the judgment-debtors. The petition filed by the decree-holders on the 30th of April, 1945, should, therefore, be construed to be one for revival of the execution petition, and not a fresh execution application. O. XXI, r. 63 of the Code of Civil Procedure provides that: - "where a claim or an objection is preferred, the party against whom an order is made by institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. " The order relating to the setting aside of the attachment passed on the 27th of November, 1936, was, therefore, subject to the result of the suit filed by the decree-holders, and as the proceedings in the suit result in favour of the decree-holders, the order of 27th November, 1936, cannot be regarded as conclusive. The order of the 19th October, 1937, in these circumstances, cannot be regarded as a final order disposing of the fourth execution petition of the decree-holders, and the petition of the decree-holders of 30. 4. 1945, shall therefore, have to be constructed to be one for the revival of the execution proceedings. The only point, which deserves a serious consideration in this matter, is whether Art. 181 of the Limitation Act would govern petitions for revival of execution proceedings. The suit filed by the decree-holders was finally disposed of on the 18th December, 1941, and if Art. 181 is applicable to such petitions, the application of 30th April, 1945, shall have to be dismissed as time-barred. On the other hand, if it is held that Art. 181 does not apply, the execution proceedings would go on without any determent to the case of the decree-holders. The lower appellate court has followed the decisions in M. Surayya vs. S. Venkatratnam (1) (A. I. R. 1953 Lahore, 911) and Chhattar Singh vs. Kamal Singh (2) (A. I. R. 1927 Alld. , 16.) in holding that the application filed for revival of the execution proceedings was governed by Art. 181 of the Limitation Act. In Chhattar Singh vs. Kamal Singh (1), the facts were that a final decree for sale was made on the 7th June, 1913. An application for execution was made on 4th January, 1916. The decree was sent to the Collector for execution. While the execution was still pending before the Collector certain people filed a suit on 13th November, 1916, to obtain a declaration that the property ordered to be sold was not liable to be sold in execution of the decree-holder's decree. On the same day the Court seised of the suit enjoined the decree-holders from proceeding with the same. The suit was dismissed in the trial court, but was decreed in appeal; and on a second appeal, the decree of the Court of first instance was restored, the suit was dismissed into by the High Court on 6th July, 1920. It was held by Sulaiman J. that the application for revival not being a fresh application for execution could not be governed by Art. 182, that the proper Article was 181, and that the obstacle to the execution of the decree was removed on the 6th of July, 1920, and, therefore, the application for revival of the execution proceedings filed within three years of this date was within time. It was also held by Mukerji J. that the substance of an application and not the form of it was to be looked to, to determine its nature. Even though an opinion has been expressed in this case relating to the applicability of Art. 181 of the Limitation Act to applications for revival of execution proceedings, no question arose for invoking the application of Art. 181, as the petition was within three years. This authority was again considered in Bhan Datta Upadhia and another vs. Mst. Tulsa Kuer (2), which is also a Full Bench case, and it was not followed. It was observed by Thorn, C. J. with reference to Chhattar Singh vs. Kamal Singh (l) and similar other decisions of that Court that : - "in none of the cases decided by this Court however has the question as to whether it was incumbent upon the decree-holder to make an application to set execution proceedings in motion have been considered. It appears in every case to have been assumed rather than decided that it was the duty of the decree-holder to make an application after the stay order had ceased to operate and that the provisions of Schdl. 1, Limitation Act, applied to such an application. " Chhattar Singh vs. Kamal Singh (1) (AIR 1927 Alld, 16.) was, therefore, not followed in Bhan Datta Upadhia and another vs. Mst. Tulsa Kuer (2) in so far as the question relating to the applicability of Art. 181 was concerned. The decision in the other case, M. Surayya vs. S. Venkatratnam (3), which has been relied upon by the lower appellate court, also proceeds on the assumption that it is incumbent on a decree-holder to make an application for revival of the execution proceedings, and it does not go to deal with the question whether it is necessary for a decree-holder to make such an application at all. The observations of Thorn, C. J. , in Bhan Datta Upadhia vs. Mst. Tulsa Kuer (2) (AIR 1940 Alld. , 151,) equally apply to M. Surayya vs. S. Venkatratnam (3) (AIR 1924 Madras, 210. ). The following observation of Niamatullah J. in Prem Narain and another vs. Ganga Ram and others (4) (AIR 1931 Alld. , 458 (2 ).), though obiter, are important and to the point: - "it is not in my opinion necessary that a formal application for reviving the proceeding should be made. It is the duty of the Court to proceed to conclusion in a matter pending before it, even though it may be to dismiss the application in default of prosecution. Assuming that an application to 'revive' proceedings is essential I have no doubt that the second application fulfils, in substance, all the requirements of an application for 'reviving' execution proceedings in abeyance. Where it is the duty of the Court to do something or to take some action Art. 181, Limitation Act, does not govern an application asking the Court to do such thing or to take such action. " In Pandurang Dewaji and others vs. Rameshwar Motiram (1) (A. I. R. 1948 Nag. 284.), it has been observed that : - "where an application is for time being and for no fault of the decree-holder, is filed, it should be deemed to be pending before the Court, and it is, in fact, the duty of the Court to have a vigilant eye and to find out if the obstruction which resulted in the filing of that application for execution had been removed. It is not the duty of the decree-holder to find out is such obstruction was removed and to remind the executing Court of its duty, to proceed with the execution application pending before it. " In Babulal and other vs. Ramji Das (2) (A. I. R. 1950 M. B. , 71.) the same principle has been accepted.
(3.) THE opposite party has referred to Desraj Singh and other vs. Karam Khan (3), which is a case which can be said to be very similar to the present one; but the observations of Thom C. J. , which have been reproduced above, relating to the decision in Chhattar Singh vs. Kamal Singh (4) (A. I. R. 1927 Alld. , 16.), equally apply to the decision in Desraj Singh vs. Karam Khan (3 ). THE decision in Desraj Singh (3) proceeded on the assumption that it was the duty of a decree-holder to move the execution Court for reviving the execution proceedings, and this question was not pertinently discussed. We do not think that Desraj Singh vs. Karam Khan (3) (I. L. R. XIX Alld. , 71.) lays down a correct proposition of law on this point. Coming to the facts of the present, case, it may be noted that after the objection petition filed by Shri Govind had been allowed, the execution proceedings in so far as they related to the property attached were suspended inspite of the fact that further execution proceedings continued relating to certain Biswa of the judgment-debtors. The setting aside of the attachment, however, depended on the result of the suit filed by the decree-holders for declaration that the property belonged to the judgment-debtors, and was liable to be attached and sold in execution. When that suit was finally determined in favour of the decree-holders, it was for the Court executing the decree to revive the execution proceedings and to proceed further in the matter. The execution proceedings, while the suit of the decree-holders continued, should be considered to be pending or suspended temporarily. The Court suomoto should have revived execution proceedings after the decision of the suit of the decree-holders. We agree with the view expressed by Thom C. J. in Bhan Datta Upadhia vs. Mst. Tulsa Kuer (5) (A. I. R. 1940 Alld. , 151.) that all applications are not governed by the provisions of the Limitation Act, and that is not necessary for a decree-holder to have moved an application for revival of the execution proeedings, as it was the duty of the Court suo moto to do so. Order XXI, Rule 63, of the Code of the Civil Procedure also makes the decision of an objection petition subject to the result of the suit filed under that Rule. The decision of an objection petition is, therefore, dependent on the decision of the subsequent suit, if any. |tn the present case, when the suit of the decree-holders succeeded, the decision of the objection petition filed by Shri Govind lost its force, and was replaced by the decision in the suit. The Court should, therefore, have taken notice of the decision in the suit, and should have revived the execution proceedings because the attachment in such circumstances automatically revived. It was, therefore, not incumbent on the decree-holders to move the Court to proceed further in the matter. Mr. Agarwal has referred to certain observations of Mr. U. N. Mitra in his Law of Limitation and Prescription, seventh edition, page 1155, wherein the learned author has drawn a distinction between two types of revival petitions. In one category he has placed those petitions where there is no final order of disposal of the case, and in the other those in which there is such a final order disposing of the execution petition. In the first class of cases, according to the learned author, no revival application is necessary, and it is the duty of the Court to suo moto revive the proceedings. In the second class of classes, it is the duty of a decree-holder to file a revival petition, which should be governed by Art. 181 of the Limitation Act. Taking the present case into consideration, it may be noted that as regards the property which had been attached, the decree-holder did everything which was in this power to see that the property was sold in execution of his decree. The proceedings, however, were obstructed when an objection petition was filed by Shri Govind, and when the objection was accepted, he had no other alternative but to file a suit under Order XXI, Rule 63, of the Code of Civil Procedure, and the further progress of the execution petition depended upon the result of the suit, in so far as the property attached in execution was concerned. Even though the order allowing the objection was perfectly legal, it was dependent on (he result of the suit under Order XXI, Rule 63. It was, therefore, a duty of the court to take notice of the decision of the suit, and to revive the execution proceedings in order that the execution might proceed further. In our opinion, an application for revival of the execution proceedings which are, or which should be, deemed to be pending, are not governed by Art. 181 of the Limitation Act, and the petition of the decree-holder of 30th April, 1945, cannot, therefore, be considered to be time-barred. This appeal is allowed with costs, the judgment of the lower court is set aside, and that of the first court restored. The court executing the decree shall now proceed further according to law. . ;