KATIFI MUHAMMAD HAMIDUDIN SAHEB Vs. MUHAMMAD GHOUSE SAHEB

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal also raises a question of limitation similar to the one dealt with in the judgment [in C.M. S.A. No. 120 of 1923 Krishna Pattar V/s. Seetharama Pattar just now pronounced. The appeal was also heard along with the last one. The decree- holders are the appellants. The execution petition out of which the appeal arises was presented on 21 October, 1921. The previous execution petition presented on 28th September, 1918 was returned by the Court for being re-presented with the sale papers and encumbrance certificate, the time allowed for representation being 3 weeks from 30th September, 1918. The petition was re-presented on 21 October, 1918 without the necessary papers called for but with a request inscribed in the petition for extension of time by two weeks for obtaining the necessary papers. Though the request was granted the execution petition was not re-presented afterwards. It has, however, been filed in Court along with the execution petition which has given rise to this appeal.

(2.) Prima facie the present petition is barred by limitation, but the appellants contend that it is not time-barred because it was filed within three years of the re-presentation of the former petition with a request for the enlargement of time and that this request amounts to an application for a step-in-aid of execution. It is conceded that the case falls within the scope of the ruling in Kuppusami Chettiar V/s. Rajagopala Aiyar (1921) I.L.R. 45 M 466 : 42 M L J 303 discussed in the prior case. On the reasoning of our judgment in that case it must be held that the decrees-holders request for the extension of time for filing the necessary papers cannot be deemed to be an application for a step-in-aid of execution. The learned vakil for the appellants has quoted a few more cases in addition to those already referred to, those being Vishva-nath Parsharam Bhave V/s. Narsu Tulsidas Gujar (1920) 23 Bom L R 107 and Raghunath Prasad Singh V/s. Lachhmi Narain Singh (1925) I.L.R. 47 A 667. In view of what we have already stated regarding the decisions of the Bombay and Allahabad High Courts, it is unnecessary to discuss these cases any further.

(3.) On the merits a special plea has been put forward to the effect that we should treat the petition re-presented on 21 October, 1918 as a fresh petition for execution. This clearly cannot be done; neither can we accept the contention that the date of re-presentation with a request for time should be treated as the date on which the application for execution was presented.