Patna High Court
Sakina Bibi vs Ganesh Prasad Bhagat on 17 July, 1917
Equivalent citations: 44IND. CAS.560, AIR 1918 PATNA 296(2)
JUDGMENT Atkinson, J.
1. The plaintiff brought an action on foot of a mortgage and recovered judgment on the 23rd of May 1900. The plaintiff made many attempts to execute this decree and I believe eight executions, or attempts at execution, were instituted. However the last petition for leave to issue execution was filed on the 20th of May 1912. The defendants, subsequently, brought a suit, after the property had been sold, contending that the same was not the property of the judgment-debtor but that it formed their own property. Consequently the plaintiff's application for leave to issue execution was stayed by order of the High Court dated the 13th of November 1912. The defendants' suit was finally disposed of and dismissed by the High Court on the 20th of May 1916. The last petition for leave to issue execution was filed three days before the 12 years had expired from the date of the decree; and therefore the application was within time within the meaning of Section 48 of the Civil Procedure Code. It is contended now that the plaintiff is not entitled to issue execution or to revive the antecedent application for execution that was made on the 20th of May 1912, because he did not proceed with his application for revival within three days from the date of the dismissal of the defendants' suit on the 20th of May 1916--that is to say, that the plaintiff, after the determination of the defendants' suit, had three days only in which to file any application that may have been necessary to revive the previous application to issue execution. As a matter of fact the plaintiff applied on the 6th of July 1916 to revive the application for leave to issue execution and this was granted. The learned Judge declined to yield to the contention of the defendants and held that the plaintiff was entitled to issue execution within the period of three years from the date of the removal of the bar for leave to issue execution or the carrying into effect of the last petition for execution filed on the 20th of May 1912. It is argued before us that Section 48 of the Civil Procedure Code applies. That section would only be applicable if it was a fresh application for leave to issue execution. It has no application whatsoever to the case of a revival of an antecedent application for execution, which had been in suspense by reason of some bar or which had been stayed pending the determination of subsequent litigation. The Article which seems to apply and which was designed to apply to this case is Article 181, formerly Article 178, of the general Limitation Act; and that Article provides that where no limitation is expressly provided by the Act for the doing of any particular act, the period of three years is to be deemed to be the period of limitation from the date on which the right accrued. In this case the right accrued at the date when the bar was removed; and the plaintiff must be deemed to have three years from that date within which he would be entitled to revive the application of the 20th of May 1912 for leave to issue execution. The defendants contend that this is very hard. It may be hard but it is very just. because it is very right and proper that the plaintiff should be entitled to a reasonable time at any rate from the date of the removal of the bar to issue execution; and to hold that he is entitled to only three days would, in my opinion, be very unfair and unjust, more especially when the defendants deliberately set themselves to endeavour by every means in their power to defeat the execution proceedings. I think that the learned Judge was right in the conclusion at which be arrived and I would dismiss this appeal with costs.
Mullick, J.
2. I agree.