Judgment

DWIVEDI, J.:- Kariya and his wife Seva purchased the house in dispute by a registered deed on April 20, 1905. Kariya died in 1936 leaving behind him Seva and Ram Charan, his son. On August 16, 1951 Ram Charan mortgaged the house to Prem Raj (the appellant). Prem Raj obtained a preliminary decree for foreclosure on August 16, 1952 and also the final decree on July 16, 1953. In the meanwhile on March 7, 1952, Seva gifted the entire house to Prakash Chandra, son of Ram Charan, the respondent. Fortified by this gift, Prakash Chandra frustrated several attempts of the appellant to get possession of the house in execution of his decree. He made three unsuccessful attempts to execute the decree till the end of 1954. He made the fourth attempt on April 25, 1956. Shortly thereafter, on December 7, 1956, Prakash Chandra instituted a suit against the appellant and his father Ram Charan for a declaration that the preliminary and final decree for foreclosure in favour of the former were not binding on him and for a perpetual injunction restraining the appellant from taking possession of the house in execution of the aforesaid decree. The suit was dismissed on November 25, 1958. He filed an appeal and obtained an order staying execution of the decree on December 31, 1958. The appeal court partly allowed his appeal on October 21, 1959. It was held that he was the owner of a half share in the house by virtue of the gift deed from Seva in his favour. So the appeal court issued an injunction restraining the appellant from executing his decree with respect to a half share in the house. The appellant filed a second appeal in the High Court of Madhya Pradesh against the judgment of the appeal court. Prakash Chandra also filed a cross-objection in respect of his claim for the remaining half share in the house. Both the appeal and the cross-objection were dismissed by the High Court on January 1, 1962.

2. Turning back to the fourth execution application filed by the appellant, it was dismissed on June 23, 1956. The fifth execution application was filed by the appellant on July 28, 1964 for possession over half of the house. The respondent objected to this application on the ground of limitation. The objection was disallowed by the execution court as well as by the appeal court. It was, however, upheld by the High Court of Madhya Pradesh. So the application was dismissed as time-barred. Hence this appeal.

3. The sole argument of the appellant in the High Court was that Section 15 Limitation Act, 1908 (hereinafter called the Act) saved limitation. The High Court rejected this argument. The order of the appeal court staying execution of the decree remained in force only for a limited period between January 31, 1958 and October 21, 1959. That time should be excluded in computing limitation under Section 15; but that alone would not save limitation.

4. Before us, counsel for the appellant has not placed reliance on Section 15 to save limitation. His arguments now are :

1. Limitation is saved by clauses 1, 2 and 4 of Article 182.

2. Limitation is saved by Clause 5 of Article 182;

3. The fifty application for execution was really an application to revive the fourth execution proceeding and therefore, it was not time-barred.

5. We shall consider these arguments in seriatim. But before we do so, it is necessary to read the relevant provisions of Article 182:

(Art. 182)

"For the execution of a decree of any civil Court. ........... Three years 1. The date of the decree...........

2. (where there has been an appeal) the date of the final decree.... of the Appellate Court.

.............................

4. (where the decree has been amended) the date of amendment, or

5. (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court... to take some step in aid of execution of the decree......

Explanation II : "Proper Court" means the Court whose duty it is to exe