Patna High Court
Ramgulam Singh And Ors. vs Raj Kumar Rai And Ors. on 25 April, 1927
Equivalent citations: 102IND. CAS.327, AIR 1928 PATNA 86
JUDGMENT Dawson Miller, C.J.
1. This question, in my opinion, must be dismissed. The question is whether the decree-holders are entitled to execute their decree or whether the execution is barred by limitation. The last step-in-aid of execution was taken on the 1st September, 1921 and the present execution proceedings were filed on the 24th June, 1925. Were that all it is clear that the present execution petition would be considerably out of time. It appears, however, that the decree which it is sought to execute was the subject of a suit by certain of the parties whose interests were affected by that decree and on the 16th September, 1921, they having instituted a suit to set aside the decree on the ground that it was null and void, an in junction was granted restraining the present decree-holders from executing it. On the 26th August, 1922, that suit succeeded and the whole decree was set aside as being null and void. Therefore, the execution proceedings were restrained by injunction from the 17th September, 1921, that is to say 17 days after the last step-in-aid of execution. That injunction no doubt expired when the plaintiffs in the suit to set aside the decree obtained their decree setting aside the previous decree on the 26th August, 1922, but from that date on wards up to the 6th April, 1925, there was no decree at all which the present decree holders could execute for by the previous decision it had been declared null and void. On the 6th. April, 1925, however, the order setting aside the decree which it is now sought to execute was reversed and from that date the decree having been restored it was open to the decree-holders to execute it. They did file the present proceedings on the 24th June, 1925. Therefore, they are clearly not out of time for from the 17th September, 1921 up to the 6th April, 1925 they were either restrained by injunction from executing their decree or there was no decree whatsoever to execute. In these circumstances it is quite clear that time did not run between the 17th September, 1921 and the 6th April, 1925. The Limitation Act is always subject to this, in so far as it applies to execution, that there must be some decree in existence which you can in fact execute. In the present case for the period which I have mentioned, between August, 1922 and April, 1925 there was no decree which could not be executed at all and the only period during which execution could take place was the short period between the 1st September, 1921 and the 17th September in the same year and the 6th April, 1925 and the 24th June, 1925 when in fact the execution case was filed. This was the view taken by the Munsif and by the District Judge on appeal. In my opinion it is clearly the right view. This appeal must be dismissed with costs.
Ross, J.
2. I agree.