SAUKHI SINGH AND ORS Vs. THAKUR PRASAD SINHA AND ANR

JUDGEMENT

(1.) This is an appeal by a judgment-debtor against an order directing an execution to proceed against him. The facts are that decree was passed so long ago as 12th March 1921, and after various previous attempts the decree-holder took out execution on 18th January 1927, and some property of the judgment-debtor was sold on 30th January 1928. Thereafter an application was filed under Order 21, Rule 90 for setting aside the sale, and on 14th March 1934 the appellate Court set aside the sale. On 2nd July 1934, being more than 12 years from the date of the decree, the decree-holder filed the present execution petition for the resale of the same property. Whatever may have been the exact form of the petition which was filed, there can be no question that its effect was to apply for a revival of the previous execution for the resale of the property and the lower appellate Court rightly held that the decree-holder was entitled to a revival of the execution for sale of a property which had not been declared to be incapable of being sold under the decree. The fact that the revival was more than 12 years from the date of the decree is immaterial, as Section 48, Civil P.C., is confined to fresh applications filed after the period of 12 years. The same point arose in 2 Pat LJ 115, Mt. Kaniz Zohra v. Syam Kissen where it was held that the application filed was in continuation of the previous application, and was governed by Article 181, Lim. Act, land not by Section 48, Civil P.C. This appeal is therefore without merit and is dismissed with costs.

(2.) I agree.