PREM RAJ versus RAM CHARAN

Citation: [1974] 3 S.C.R. 494 · Decided: 04-03-1974 · Supreme Court of India · Bench: P. JAGANMOHAN REDDY · Disposal: Appeal(s) allowed

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Judgment (excerpt)

.(94 
PREMRAJ 
v. 
RAM CHARAN 
Mat·ch 4, 1974 
[P. JAGANMOHAN REDDY, S. N. DWIVEDI AND P. K. GoSWAMI, JJ.) 
Limitation Act 1908---S. 182-Whethcr the fifth applicatioll for execution was 
a "step in aid of execution" and if so, whether ir is barred by limitation. 
K. and his wife purchased the house in dispute. K died in 1936 leaving behind 
him S and R, his son. In 1951, R mortgaged the house to the appellant. 
The. 
appellant obtained a preliminary decree for foreclosure and also the final decree 
In the meantime, S. gifted the entire house to Prakash Chandra son of R. He 
thereafter, frustrated several attempts of the appellant to execute the decree and in 
1956, instituted a suit against the appellant and another for a declaration that 
the preliminary and final decree of foreclosure were not binding on him and 
prayed for a perpetual injunction against the appellant. The suit was dismissed 
but he appealed. The appeal court partly allowed his appeal holding that he 
~·~s t~e o~ner. of half share in the house by virtue of the gift and issued an 
I OJ unction m hts favour. The appellant filed a second appeal in the High Court 
and Prakash Chandra also filed a cross-objection in respect of his half share. 
Both the appeal and the cross-objection were dismissed by the High Court 
The fourth execution application filed by the appellant was dismissed on June 
23, 1956. The fifth execution application was filed by the appellant on July 28, 1964 
for possession of half of the house. The respondent objected to this application 
on the ground of limitation. The objection was disallowed by the execution court 
and by the appeal court. It was, however, upheld by the High Court and the appli· 
cation was dismissed as time-barred. Hence this appeal. 3 points were raised by 
the appellant before this Court-(1) Limitation is saved by cis. 1, 2 & 4 of Art. 182 
(ii) Limitation is saved by cl. 5 of Art. 182 and (iii) the fifth application for execution 
was really an application to revive the fourth execution proceeding and therefore, 
it was not time-barred. Dismissing the appeal, 
HELD : (i) It is plain that neither the decree of the appeal court nor the decree 
of the High Court reversed, varied or amended in any manner the final foreclosure 
decree of the appellant. The foreclosure decree remained intact and fully alive. 
It could be executed against the respondent according to its tenor. He could be 
ejected from the whole house. But it could never have any effect against Prakash 
Chandra's (the respondent's son) paramount title to a half ~har~ in the house. 
Prakash Chandra's appeal and the High Court decree I?assed m h1s a~penl ~ould 
not fall within cls. 2 & 4 of Art.182 and would not fllrmsh a fresh start.mg pomt of 
limitation for executing 'the foreclosure decree against the respondent-judgment 
debtor. 
Bhawanipur Banking Corporation Ltd. v. Guri Sf1ankr1· Sanna (1950] 
SCR 25 referred to. [498 A-B, q 
(ii) In order to get the advantage ofCl. 5 of Art. 182, the appell~nt has to satisfy 
3 conditions:-
(a) the written statement filed in respondent-son's suit and in his appeal were 
an "application" 
(b) the Court where respondent-son's case and appeal, and wherein the appellant's 
second appeal was filed were the proper court, and 
(c) Proceedings specified in (a} are a step in aid of execution of the decree sought 
to be executed by the appellant. {498 D·F] 
(iii) To oppose Prakash Chandra's suit, the appellant had filed a written statemen!. 
Tbe written statement ordinarily does not include any request to the court and 1t 
is not an 'application' within the meaning of Cl. 5 of Art. 182. [499 C·D] 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
PREM RAJ v. RAM CH.UAN (Dwivedi, ],) 
(95 
(PflllltQ LDI v. Snrt. SarasWQti De~i AIR 1960 All S72 and Karlar Si~i. v, SMllaff 
Singii'Par~ap Sitith A.J.R. 1967 Punjab:m, distinguished.) 
· 
(iV) Further, even if the suit and appeal was instituted in the proPer court, the 
written statement filed by the appeUant was not an application and· thw:fore, he 
caDDot take advantage of 0. !! of Art. 182. -As the appellant's appeal ~n the Hiah 
Court was not an application to the 'Proper Court', it is unnecessary to deCide whether . 
in 1he suit and in the appeal filed by Prakash Chandra the written statement of ·the 
appellant and his resistance to ibe appeal and his second appeal in tho High Court 
amounted to a step-in-aid in execution of the decree sought to be executed by him. 
[500

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