LexPREM LATA AGARWAL versus LAKSHMAN PRASAD GUPTA & ORS.
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PREM LATA A.~A~WAL V. LA.KSHMAN PRASAD GUPTA & ORS. April 23, i 97d [~. N. RAY AND [, o .. DUA, JJ.] Lilnilatio11 Act (9 of 1908), s·. 1 15 <OU! Art. 182 and Proced11re \Act 5, of 1908), "" 48-Scope of. C"odt! of Ciril II The first respondent, in 19.1_8, obtained a decree- against the appellanf~ branch of a jo_int f:uTiily, and in l-94). commenced proceedings ·for the C cx~cution of the decree in Allahabac.l. Meanwhile, in 1939, a final <lecrcc. had been passed in ·a suit for partitioning tpe fan1ily properties among the members of the joint 'family, und the matter was taken up in appeal to the High Court of Allahabad. Certain orders Wfre passed by the High Court which were construed hy the executing court' in the years 1941 and 1942 as stay orders of the execution proceedings commenced by Jhe~ ....:;;:-'""" respondent. The High Court passed a final decree in the partition suit in December 1949, but diJ not in1n1c<liatclY discharge the Receivers \\'h1..l D \Vere uppqinted ~.~1r,ing the pendency of the suit. The respondent reviv- ed the execution proceedings in May 1950 and a mill belonging to the joint family·~wa.s .attached and sold but the sale was set asiJe in 1955 as the Hppcllant"s branch applied for relief under· the U.P. Encumbered Estates Act, 1934. Thereafter, in 1956. the decree in f;\vour of the respondent was transferred to Madras High Court for cxecu:ion and on J 3th August. 1956. the respondent filed an execution npplication, for E attainment of certain properties 'vhich fell tQ. the appellant's share. The High Court of Madras in Letters Patent Appeal held that the execution application was in time. On the question Ylhethcr the execution application dated J Jth August, J 956, \Vas in time, or barred by Ji1nitutio11. HELD : ( i) The respondent bonafide pursued execution 1.tgainst the mill and since his gooU f;:dth was not questioned before the Appelh1te Court it was :-'.')l open to the appellant to do so in this Cqun. [370 A. •.:.::-] F (ii) It \V3s not possible to spell out any order of partial stay on th~ facts and circumstances of the present case. The facts that the Receivers were not finally discharged in 1949 \Yhcn the final decree hy the High ·Court \Vas passed in the, partition suit. and the understanding ,of the parties and the executing court that execution \Vas stayed by the High Court, indicate that the stay ''-'US in unqualified tc·r?ns. Therefore, the respon- G dent could not have applied earlier ·for cxecUtiOn "''ith respect to other property of the ioint fan1ily either :1t Al/ahahad or at ~1adras. f369 A-C. D-OJ • (iii) Further. \\hen the execution proceedings "''ere revived in ~lay J 950 the executing court held that execution proceedings hall heen st:.1ycd till Dccen1hcr 1949 anJ !he apfJcllant Ujd not challenge the order ,of attachn1cnt and sale· of n1ill on the groun<l that the proceeding<; were ban-..:d 11 by 1in1itation. Therefore, the app.cllant was barred hv the principle of res judicata from questioning the order of Ma}' 1950 on rhc grounll of li111it;_!tion. [371 D-El 1' -~ B ·C r. L. AGARWAL V. L. P. GUPTA (Ray, J.) 365 t 1v) Section 15 o'f the Limitation Act states that in computing the period of limitation prescribed the time of the continuance of the injunc- tion staying execution shall be excluded. The word ··prescribed·' v.·ould apply not only to Limitation Act but also to the limitation. prescribed in general statutes like the Civil. Procedure Coder Section 48 of the Code, as it then stood, laid down I:! years as the maximum limit of the period of execution but it did not prescribe the period within which each applica- tion for execution was to be made. Such an application ~·as to be made within three years from the dates mentioned in third column of Article 182 of the Limitation Act. 1908. Therefore, an application ior ·~.xccu tion of a decree must first satisfy Article 182 and it would then ha,·e to he found out as to whether s. 48 of the Civil Procedure Code opernted as a further bar. f370 C-H; 37 l A-BJ (v) Since the execution proceedings \vc;·c 1taycJ in the prc~cnt ca,e, the respondent \\•as entitled to claim its 11cncfit of s. 15 of the Limitation Act in respect of the period of stay o·f the execution of his decree. lrom June 1941 till end of 1949: and since the execution application of 1950 was finally disposed of in 1955, the present applicati
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