KRISTO KAMINI DEBI Vs. GIRISH CHANDRA MONDAL

JUDGEMENT

(1.) This appeal is on behalf of the decree-holder and is directed against the order of the learned District Judge of Burdwan dated 10-2-1934 by which her application for execution of a decree for money which she had obtained against the respondents on 8 June 1920 has been dismissed. The appeal raises an important question of limitation on which not only the other High Courts have differed, but different views have been expressed by this Court on different occasions. The relevant facts are as follows: In 1921 the appellant applied to execute her decree. Her application for execution was numbered Title Execution No. 135 of 1921. Therein she applied for sale of some properties and in due course the said properties were attached. The judgment-debtors, however, instituted a suit against her in the year 1922 (Title Suit No 66 of 1922) in which they prayed for setting aside her decree. In the course of that suit an injunction was applied for and obtained by the judgment-debtors restraining her from proceeding with her execution till the disposal of the said suit. On the injunction being granted the executing Court recorded an order on 19 June 1922 in the following terms: Under order No. 7 dated 19 June 1922 passed in title suit No. 66 of 1922 the sale of this case be stayed. The attachment will continue till the disposal of the aforesaid suit. The case be dismissed for the present.

(2.) There is nothing to show that this order was passed in the presence of the decree-holder, and certainly there is nothing to show that the decree-holder was at fault or in default to merit the dismissal of her execution case. It seems to us to be one of these classes of orders, for which there is no warrant in law, frequently passed for the quarterly returns. The order had no doubt the incidental advantage of improving the Subordinate Judge's list, but it has the disadvantage of causing a great deal of difficulty and argument both in the Courts below and before us. After giving our anxious consideration to the matter, we have come to the conclusion that it is a suspensory order which kept the execution case pending, but off the list of pending cases only during the time that the aforesaid title suit of 1922 would be pending in the Court of first instance. On 10 June 1929 the said title suit was dismissed by the Court of first instance and an appeal against the decree of the said Court was dismissed on 21 July 1930. On 20 April 1933, that is beyond three years of the date of the dismissal of the title suit by the first Court, when the injunction order terminated, the appellant filed an application in the executing Court in a tabular form. Therein she mentioned some properties over and above those mentioned in her application for execution filed in 1921, which she wanted to sell for satisfaction of her decree, but ultimately she gave up those additional properties and wanted to sell only those properties which were mentioned in her application for execution filed in 1921.

(3.) In one column of the application which she filed on 20 April 1933 she stated that her application may be treated as an application for reviving Title Execution Case No. 135 of 1921, and be taken in continuation of her previous application for execution. The learned District Judge has held that after the abandonment of her claim to proceed against the additional properties her application is one in continuation of her previous application for execution filed in the year 1921. We hold that the learned District Judge is right in the view he has taken in this respect. It is well established that an application for execution of a decree may be treated as one in continuation or for revival of a previous application for execution, similar in scope and character, the consideration of which had been interrupted by objections and claims subsequently proved to be groundless or had been suspended by reason of an injunction or like obstruction. The finding of the learned District Judge in our judgment is a finding of fact and cannot be challenged by the respondent judgment-debtors.