- (1.) THE following facts relating to the proceedings out of which this second appeal arises are material and they will be helpful in disposing of this appeal.
(2.) HUKAMCHAND brought a suit against Kishan Lal Khamesra in Samvat 1944 for redemption of a shop which was originally mortgaged by Nawal Chand Nehal Chand with one Swai Ram Samu Ram, who in turn sub-mortgaged it with HukamChand Sakhla and the latter mortgaged his mortgagee rights in the property with Kishan Lal Khamesra. Hukam Chand's suit was decreed in Samvat 1944 in the following terms by Mahendraj Sabha: - "That on payment of Rs. 410/ 10/3 by the appellant plaintiffs to the defendants-respondents, the latter shall deliver the suit property to the plaintiff". Subsequently, the decree-holder applied in court that since he was not in a position to pay the mortgage money, the amount may be ordered to be paid by instalments and he should be put in possession of the mortgage property. Attempts at a compromise having failed the court disposed of the proceedings in Samvat 1953 with the remark "that the case be dismissed in default." Then in Samvat 1972 the successor in interest of Nawal Chand Nehal Chand, said to be the original owners of the suit properly and its first mortgagors, redeemed the property privately from Kishm Lal Khamesra and took possession of it. In Samvat 2004 one Khubi Lal, on behalf of Hukam Chand, decree-holder, made an execution application on 7. 10. 1947, in the court of the City Munsiff, Udaipur. It was opposed by Nawal Chand Nehal Chand on the ground that he was in possession of the property, in dispute, and against whom the application could not be executed as he was not a party to the original suit and also for the reason that the execution application was time-barred. The Munsiff decided it in favour of Khubilal and that decision was, on appeal, upheld by the learned District Judge. Against this finding of the two courts below Nawal Chand Nehal Chand has come up in this second appeal. I have heard the parties' learned counsel at some length. The first question is whether the court was competent to give relief to the decree holder against Nawal Chand Nehal Chand, who was not a party to the original suit, but who admittedly claimed to have redeemed the suit property and thus came in possession of it from Kishanlal, who was a party to the suit and, the decree in which suit, is now sought to be executed. Section 47 of the Civil Procedure Code provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. The question is whether Nawal Chand Nihal Chand can be classed as a representative of any one cf the parties to the suit ? The term " representative " in this Section includes not only "legal representative" in the sense of heirs, but also "representative in interest" that is, any transferee of the decree-holder's interest or any transferee of the judgment-debtor's interest who, so far as such interest is concerned is bound by the decree. The word "representative" as used in this Section means a person in whom the interest of a party to the suit has vested either by an act of the party or by operation of law. The two tests to be applied are, firstly, whether any portion of the interest of the judgment debtor, which was originally vested in one of the parties, has by the act of the parties vested in the person who is sought to be treated as representative, and secondly, if there has been devolution of interest whether, so far as such interest is concerned, that person is bound by the decree Applying these two tests to the present case, it can be said that under the decree of Mahendraj Sabna, Kishanlal was liable to deliver possession of the suit property to Hukam Chand on receipt of a certain amount and this interest of the judgment-debtor, including possession of the suit property which originally vested in the parties to the suit, has been transferred by Kishanlal to Nawal Chand and, therefore,he cannot but be treated as a representative in interest of Kishanlal Khamesra and, therefore, the courts were undoubtedly competent to decide any objection raised by Nawal Chand Nehal Chand, under Section 47 of the Civil Procedure Code. The next question raised is that of limitation. It is common ground that there was no Limitation Act in Mewar prior to 1932 A. D. when it was introduced for the first time from the 1st July' 1932. Clause(b) of Section 22 of the Mewar Limitation Act when translated will read thus:- "Any application for which no period of limitation was provided, will be entetainable upto a period of six months after the enforcement of the Limitation Act. If under the said Act a longer period of limitation is available then that provision of the act shall be applicable. Article 29 gives three years period of limitation for presentation of execution applicable from the date the suit was decreed. Subsequently a Government Circularwas issued, dated 28th August, 1936. which points out certain misunderstandings in the application of the Limitation Act in cases of execution petitions and with a view to clarify the position it was notified for guidance of all concerned that all applications for execution of decrees be filed within a period of one year from the publication of notice and on expiry of this one year period no execution application against old decrees shall be entertained. As mentioned elsewhere, the last order on the application in execution of a decree of Samvat 1944 was made in Samvat 1953 as "dismissed in default." Since then no step-in-aid was taken by the decree-holer in prosecution of his execution application, and the application now sought to be executed is made 51 years after the first execution application was disposed of and 11 years after the Circular referred to above. Scanned from every angle this application is time barred. The respondent's learned counsel has sought to take shelter under the exception under Section 48 of the Civil Procedure Code, introduced in Mewar in 1940 A D. This Section deals with the maximum limit of time for execution; it does not describe the period within which each application for execution is to be made. This is probably an enabling provision for a decree-holder to present in succession any number of execution applications pertaining to the same decree unless (1) the application is barred by virtue of general principles of law or, (2) it is barred under the Limitation Act or, (3) it is barred under the provisions of Sec. 48 itself. This provision is not meant 10 be used in supersession of the Limitation Act specially enacted for the purpose. The respondent's learned counsel has referred me to clause (c) of Section 48 and submits that by this specific provision in all decrees passed before 1940 A. D execution applications could be filed within a period of 12 years and, in as much as, the application, in question, was filed in 1947 and as such within the required period it should be deemed to be within the period of limitation. On careful 'consideration of this provision as well as the provisions of the Limitation Act of 1932 and the Circular of 1936 A. D., I am of the opinion that the special proviso in clause (c) of Section 48 of the Mewar Civil Procedure Code was never intended to override the provisions of the Limitation Act of 1932 or the spirit of the Circular dated 28th August, 1936. The said Circular made it incumbent upon all decree-holders of decrees prior to its publication to file execution applications within a period of one year after which time no application in execution of old decrees was to be entertained. I am not prepared to believe that by the enactment of Section 48 it was intended to renew the period of Limitation or to nullify the provisions of the Limitation Act or the said Circular. For the aforesaid reasons I have no hesitation in holding that the execution application of 7th October, 1947, is time-barred and as such it cannot be executed by the original court. This appeal is, therefore, accepted with costs through out. The order of the learned District Judge, dated 14.5.49, is hereby set aside and the application of 7.10.47 dismissed as time-barred. The respondent's learned counsel seeks permission to appeal against this Court's decision, in a Division Bench of the High Court. As I consider that an important point of law is involved, specially on the interpretation of clause (c) of Section 48, it is desirable that the permission sought for should be granted. The other side counsel has nothing to say against it, and therefore, certificate to appeal to a Division Bench may be granted. ;