An objection under Section 47 of the Civil P. C. is an application and is governed by Article 137 of the Limitation Act.

( 1 ) THE order dated May 26, 1981 passed by Shri S. K. Mitra, Judge, City Civil Court. Calcutta in Miscellaneous Case No. 971 of 1978 rejecting an objection under Section 47 of the Civil P. C. on the ground of limitation has been challenged under the present Rule,

( 2 ) A suit for ejectment being Ejectment Suit No. 530 of 1969 was filed against the petitioner on April 15. 1969 which was decreed ex parte on 4th July, 1969. This decree was put into execution on Aug. 26,. 1969 by Ejectment Execution Case No. 611 of 1969. On Nov. 12, 1969 the opposite party filed an application for allowing Police help which was numbered as Misc, Case No. 880 of 1969.

( 3 ) ON May 6, 1970 the petitioner filed an application under Order 9, Rule 13 of the C. P. Code which was numbered as Misc. Case No. 431 of 1970. Misc. Case No. 880 of 1969 for Police help was allowed ex parte on Dec. 21, 1970. The application for setting aside ex parte decree i. e. Misc. Case No. 431 of 1970 was dismissed on contest on Mar. 25, 1972. The appeal against the order being F. M. A. 457 of 1972 was dismissed on contest on April 17, 1979. The petitioner tenant, however, was allowed time till the end of July 1979 for rendering vacant possession. Further proceedings of Ejectment Execution case remained stayed from May 7, 1970 to July 31, 1979. On July 31, 1979 the petitioner came up with the objection under Section 47 of the C. P. Code. This was numbered as Misc. Case No. 971 of 1979. On the following day an application under Section 5 read with Section 14 of the Limitation Act and Section 151 C. P. Code was filed for condonation of delay. By the impugned order the application for condonation of delay as well as objection under Section 47 was rejected.

( 4 ) MR. R. N. Mitra, learned Advocate for the petitioner contends that the objection under Section 47 of the Code is not an application and as such the provision of Article 137 of the Limitation Act would not be applicable. It is only by way of abundant caution the petitioner filed an application for condonation of delay. With reference to Civil Rules and Orders Vol. I. Rule 776 it is contended that the objections under Section 47 of the Code has been described as cases and not applications and that the learned Judge was not justified to treat the objection as an application. Reliance is made on the cases reported in AIR 1935 All 1016 (Pokhar Singh v. Tularam) and. (Nar Singh Datt v. Ram Pratap ). It is held therein that no limitation is prescribed for an objection under Section 47, C. P. Code. Objection under that section cannot fall within Art. 181 of the Limitation Act. For an analogy Mr. Mitra refers to the decision of a Division Bench of this Court in the case of Birendra Nath Banerjee v. Smt. Snehalata Devi, wherein it is held that an application for pre-emption under Section 4 of the Partition Act, 1893 can be made at any stage while the suit is pending or in other words before final decree for partition is made. An application claiming pre-emption at any time when the appeal against final partition decree is pending cannot be held barred by limitation on the ground that it has been filed beyond three years of the passing of the preliminary decree. Again in support of the contention that even if the objection be taken to be an application, that being filed in a pending proceeding, will not be attracted under Article 137 reliance is placed on the decision in the case of Paritosh Kumar Ghose v. Smt. Saraswati Nandi. It is contended by Mr. Mitra that there is hardly any difference between a pending suit and a proceeding for execution.

( 5 ) MR. Saktinath Mukherjee, learned Advocate for the opposite party on the other hand contends that the Division Bench of this Court held that a proceeding under Section 47 of the C. P. C. will be governed by Limitation Act. He makes reliance on the decision in the case of Hafez Uzir Ali v. Nisaimannessa Bibi reported in AIR 1928 Cal 865. It is held therei