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1961 Supreme(All) 228
IN THE HIGH COURT OF ALLAHABAD
A. P. Srivastava and Bishambhar Dayal, JJ.
CHANDI PRASAD PATHAK - Appellant
Versus
SADANAND PATHAK - Respondents
Special Appeal 54 Of 1952
Decided On : 12/18/1961
Subject
Execution of Decree - Limitation
Act Referred
SOLDIERS LITIGATION ACT : S.11, S.4
Headnote
EXECUTION OF DECREE - LIMITATION - INDIAN SOLDIERS (LITIGATION) ACT, 1925 - SECTION 11 - APPLICABILITY - IDENTITY OF INTEREST - SECTION 6.
Fact of the Case:
The appellant, a decree-holder, filed applications for execution of two decrees in 1944, more than three years after the final order in the execution cases in 1941. The judgment-debtors objected, claiming that the applications were barred by limitation. The appellant argued that the limitation period should be counted from the date the papers were consigned to the record room, not from the date of the final order, and that he could exclude the period during which one of the judgment-debtors was serving in the military under Section 11 of the Indian Soldiers (Litigation) Act, 1925.
Finding of the Court:
The court held that the limitation period should be counted from the date of the final order, not from the date the papers were consigned to the record room, as the latter was not a final order in the execution case. The court also held that Section 11 of the Indian Soldiers (Litigation) Act, 1925, was not subject to Section 6 of the Act, and that the appellant could exclude the period during which the judgment-debtor was serving in the military from the limitation period.
Issues: 1. Whether the limitation period for execution of the decrees should be counted from the date of the final order or from the date the papers were consigned to the record room? 2. Whether the appellant could exclude the period during which one of the judgment-debtors was serving in the military under Section 11 of the Indian Soldiers (Litigation) Act, 1925?
Ratio Decidendi: 1. The limitation period for execution of a decree is to be counted from the date of the final order in the execution case, not from the date the papers are consigned to the record room. 2. Section 11 of the Indian Soldiers (Litigation) Act, 1925, is not subject to Section 6 of the Act, and a party to a suit, appeal, or application can exclude the period during which they were serving in the military under special conditions from the limitation period.
Final Decision: The appeals were allowed to the extent that the order allowing the judgment-debtors' objection about limitation was set aside and the cases were sent back to the trial court for a decision on whether the appellant could claim the benefit of Section 11 of the Indian Soldiers (Litigation) Act, 1925.
AMBIKA PRASAD, CHANDRA BHUSHAN MISRA, K.L.MISHRA, K.N.Gupta
( 1 ) THESE are two connected Special Appeals that arise out of execution matters. They involve common points and can therefore be disposed of together.
( 2 ) THE appellant is the decree-holder. He obtained decree No. 2331 of 1933 from the Court of the judge Small Causes at Gorakhpur on the 30th of August, 1933. Another decree No. 1142 of 1933 had also been obtained by him from the same Court. This latter decree had been transferred for execution to the Munsif of Bansgaon and an execution application in respect of it was pending in that Court. The decree NO. 2331 of 1933 was also transferred to the Court of the Munsif of bansgaon and an application to execute it was filed in that Court. On the 17th of September, 1941, the decree-holder made a statement before the Munsif of Bansgaon that his execution application in respect of decree No. 1142 of 1933 be struck off though attachment of the attached properties may continue. The execution application was accordingly struck off and it was directed that the attachment might subsist. On the same day another order was passed in respect of the application for execution made for executing decree No. 2381 of 1988 and that application too was struck off. After the two execution eases had thus ended in the Court of the Munsif of bansgaon by the order dated the 17th of September, 1941, the records were sent back to the judge Small Cause Court of Gorakhpur. On the 16th of October, 1941, the Munsarim of the small Cause Court Judge of Gorakhpur directed that the papers be consigned to the record room.
( 3 ) ON the 14th of October, 1944, the appellant got the two decrees again transferred to the munsif of Bansgaon and filed applications for their execution. The application were ultimately rejected.
( 4 ) ON the 14th of April, 1946, within three years of the rejection of the applications for execution which had been made the second time the appellant made his third application for the execution of the two decrees in the Court of the Munsif of Banaras, which gave rise to the execution cases out of which the present appeals have arisen.
( 5 ) THE two persons against whom the two decrees had been passed were Chander Dev Pathak and Sadanand Pathak sons of Pt. Ram Dihal Pathak. Chander Dev Pathak had three sons. Ram narain Pathak, Prem Narain Pathak and Rameshwar Pathak. The execution was proceeding against Sadanand Pathak and the sons of Chander Dev Pathak. One of these sons Ram Narain pathak was employed in the army. It is not disputed that he got employed in the army in July 1944. The lower appellate Court has said that he continued in the military employment till november, 1946, but the learned Single Judge has on the basis of a letter issued by the Officer commanding on the 8th of January, 1947, said that Ram Narain Pathak had been dismissed from the military service with effect from the 3rd of January, 1945.
( 6 ) WHEN the applications for execution were filed the third time the judgment-debtors raised an objection about limitation. They contended that the applications for execution which had been filed the second time had really been filed beyond time and on that account they ought not to have been entertained. They being barred by limitation the subsequent applications for execution also ceased to be maintainable and were liable to be dismissed. The ground on which the applications for execution made the second time were said to be time-barred way that the final order made by the executing Court (the Munsif of Bansgaon) in respect of last execution applications was dated the 17th of September, 1941. The three years period of limitation, it was contended, was to be counted from that date and the decrees ought to have been executed on or before the 16th of September, 1944. The limitation could not, it was urged, be counted from the date on which the Munsarim of the Small Cause Court Judge directed the consignment of the papers to the record room and the fact that the applications
