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1919 Supreme(All) 162

ALLAHABAD HIGH COURT
P.C. BANERJI, PIGGOTT, JJ.
Seth Shyam Karan & Ors. - Appellants
Versus
The Collector of Benares - Respondent
Decided On : 08-08-1919

JUDGMENT

1. This and the connected appeal arise out of execution proceedings in connection with a simple decree for money passed on the 18th of December 1897. Various applications for execution were made between that year and the year 1906. In 1905 the' property of the judgement-debtor in the District of Hamirpur was taken charge of by the Colleotor, apparently under the provisions of Section 326 of the Code of Civil Procedure, 1882. [The management of the Collector continued down to 1917, when he released the property. Oh the 4th of April 1917 the Court of Wards, now in charge of the estate of the decree-holder, applied for attachment and sale of the property situated in the Hamirpur district. This application was resisted by the judgment debtors on the ground of limitation. They contended that the application was barred by the three years' rule of limitation prescribed by the Limitation Act and also u/s 48 of the Code of Civil Procedure. The objection was allowed by the Court of first instance, which held that having regard to the fact that more than twelve years had elapsed since the date of the decree, Section 48 of the CPC was applicable and the present application for execution could not be maintained. This decision has been overruled by the lower Appellate Court, which has held that the application for execution is within time.

2. The learned Vakil for the appellants has conceded that the three years' rule of limitation under the Limitation Act would not apply to the present case in view of the provisions of Clause (3), paragraph 11 of the 3rd Schedule to the Code of Civil Procedure, : 1908. He contends that, Section 48 is applicable and as more than twelve years have expired since the date of the decree, the present application cannot be granted. There can be no doubt that the present application is a substantive application and afresh application for the execution of the decree. It is not an application in con-tinuapoe of any previous application for execution. The question to be decided is whether Clause (3) of paragraph 11 of the 3rd Schedule is applicable to the present case, so far as the question of the bar of Section 48 arises. Clause 2 of paragraph 11 provides that during the period that the property of the judgment-debtor is under the management of the Collector, no Civil Court shall issue any proeess of execution either against the judgment debtor or his property in respect of any decree for the satisfaction whereof provision has been made by the Collector under paragraph 7; Clause (3) provides that the same period shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived It is contended on behalf of the appellants that this clause applies to the period of limitation prescribed by the Limitation Act for the execution of a decree and that the period after which an application for execution cannot be made in view of the provisions of Section 48 of the CPC is not a "period of limitation" within the meaning of this clause. We think that the words "period of limitation applicable to the execution of any decree" in Clause (3) have been used in a general sense and that they are intended to apply to the time beyond which an application cannot he made for execution of a decree. This was the view taken by the Judicial Commissioner's Court of Oadh in Mohammad Abdul Karim Khan v: Nawaz Singh 8 lad. Cas. 377; 13 O.C. 303. In that case a question similar to the one which arises in this appeal was considered and decided. The learned Judicial Commissioners were of opinion that Clause (3) of paragraph 11 was wids enough to include the case of an application to which Section 48 of the CPC applies. As the learned Judicial Commissioners point out in that case, there are two descriptions of limitation provided for applications for execution. One is that prescribed b

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