Back
1952 Supreme(Nagpur) 146
HIGH COURT OF NAGPUR
Mudholkar, J
AHILYABAI TIWARI – Appellant
Versus
RAMBHAJIRAO GOWARDHAN BAPU AND ORS – Respondent
Miscellaneous First Appeal No. 198 of 1948
Decided on : 23-12-1952
B R Mandlekar, R J Pawar, Advocates
The pendency of another application for execution of a partition decree is sufficient to keep the execution matter alive and allows the benefit to be had by a party other than the one who made the application.
Headnote:
Limitation - Execution of Partition Decree - Pendency of Another Application for Execution - Benefit to Another Party
Fact of the Case:
The appeal arose from the dismissal of the Appellant's application for execution of a final decree for partition on the ground of being barred by time.
Finding of the Court:
The Court found that the dismissal of the application was erroneous as the pendency of another application for execution of the partition decree by a different party was sufficient to keep the execution matter alive, allowing the benefit to be had by a party other than the one who made the application.
Issues: The main issue was the applicability of the bar of limitation to the Appellant's application for execution of the partition decree.
Ratio Decidendi: The pendency of an application for execution of a partition decree is sufficient to keep the execution matter alive, and the benefit thereof can be had even by a party other than the one who made the application.
Final Decision: The Court set aside the lower court's order and remitted the matter for disposal in accordance with law, allowing the appeal and bearing the costs incurred.
Mudholkar, J—This appeal arises out of proceedings for execution of a final decree for partition. The Appellant's application for execution was dismissed on the ground that it was barred by time.
2. It seems to me that the dismissal of the application was erroneous. This application was made as far back as on 24th April 1947 which, no-doubt, was more than 12 years after the decree was passed. It must, however, be pointed out that on that date another application, for execution of the partition decree filed by Rambhajirao, Respondent No. 1, was actually pending. The pendency of an application for execution of a partition decree is sufficient to keep alive the whole of the execution matter and the benefit thereof can be had even by a party other than the one who has made the application. In the circumstances, the Court below was in error in dismissing the Appellant's application for execution. Accordingly, I set aside its order and remit the matter to it for being disposed of in accordance with law.
3. Costs of this appeal will be borne as incurred because the bar of limitation was, applied by the Court below 'suo motu' and not at the instance of the Respondent No. 1. Counsel's fee Rs. 25/-.
Final Result : Allowed
