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Ishri Rai vs Raghupat Narain Rai And Ors.

High Court Of Judicature at Allahabad|25 April, 1921


1. The question for Consideration in this appeal is whether an application for the execution of a certain degree was barred by time. A previous application for execution was made for the sale of certain property belonging to the judgment-debtor on the 17th May 1915. To that application an objection was filed by the judgment-debtor to the effect that he had already paid the entire decretal money to one of the decree holders and that that payment operated as a complete discharge of his liability. On the 11th of March 1916 the decree-holders respondents filed an application stating that the person to whom the alleged payment was said to have been made was not the head of the family to which the decree-holders-respondents belonged and that the alleged payment was not, therefore, binding on them and could not operate as a discharge of the degree. This objection was allowed in part on the 8th of July 1917 the order of the Court being that the payment held good so far as the share of the co-decree bolder to whom it had been made was concerned, and that it was not binding on the present degree holders-respondents to the extent of their share. There was an appeal from this order, which was dismissed on the 30th of May 1918. There wig a further appeal to this Court, which was also unsuccessful.
2. The next application for execution was filed by the said decree-holders on the 25th June 1918 for the revival of the previous execution proceeding; and it was, apart from the question of revival within time from the date on which the decree-holders-respondents bad filed their rejoinder in the previous execution proceeding. The Counts below have held that the application filed by them in rejoinder was a step in aid it execution and saved limitation. That view is supported by the decision in Tamizun nissa Bibi v. Najju 48 Ind. Cas. 38 : 40 A. 668 : 16 A.L.J. 704. It was there held that an application to the Court executing a decree asking that certain objections to the execution of the decree should be rejected, was a step in aid of execution within the meaning of Article 182, Clause 5 of the First Schedule to the Indian Limitation Act, 1908.
3. In the rejoinder filed in the previous execution proceeding the decree-holder respondents had asked that the objection filed by the judgment-debtor should be rejected. They could not have proceeded with the execution of their decree till that objection was decided, for the judgment-debtor contended that the entire decree had been satisfied by the payment made to one of the co-decree-holders.
4. The application filed by the decree-holders to have that objection dismissed was, therefore, an application to take a step in aid of execution and gave a fresh starting point for limitation. The present application for execution was made on the 20th June 1919 and is within time from the preceding application. We dismiss the appeal accordingly with costs, including fees in this Court on the higher scale.
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Ishri Rai vs Raghupat Narain Rai And Ors.


High Court Of Judicature at Allahabad

25 April, 1921
  • Walsh
  • K Lal