Dharm Nath Prasad vs Hari Dusadh

B.P. Jha, J.—This is an appeal arising out of a proceeding u/s 47 of Civil P. C. (hereinafter to be referred to as the Code).

The relevant facts are these:

Hari Dusadh (respondent) obtained a money decree against Abdul Gafoor. He filed execution case No. 64 of 1949 for executing the decree. During the pendency of the execution proceeding one Abdul Haque filed an application under Order 21, Rule 58 of the Code. The claim of Abdul Haque was rejected by the executing court. Respondent Hari Dusadh purchased plot No. 322, khata No. 68, of village Mahadeva, having an area of 11 katha in an auction sale in the execution case.

Being dissatisfied with the order passed under Order 21, Rule 58 of the Code, Abdul Haque filed a suit under Order 21, Rule 63 of the Code which was decreed on 27th July, 1952. The parties went in appeal to the High Court and ultimately respondent lost in the High Court.

In the meantime Abdul Haque died and his heirs, Bibi Marium and others, filed an application u/s 144 of the Code for restitution. In other words, the heirs of Abdul Haque applied for executing a decree passed by the High Court, which arose out of the suit filed by Abdul Haque under Order 21, Rule 63 of the Code. On 12-5-1960 the restitution application was allowed by the executing court. Against that order the respondent preferred miscellaneous appeal 68/4 of 1960 which was dismissed on 28-2-1961.

Thereafter on 11-9-1965 the heirs of the decree-holder, namely, Bibi Marium and others executed a sale deed in respect of 11 kathas of plot No. 322 of khata No. 68 of village Mahadeva in favour of the appellant for Rs. 1,100/-. Being the assignee of the decree-holder, the appellant filed an application under Order 21, Rule 16of the Code for obtaining delivery of possession of the land restituted in favour of the decree holder.

On these facts, learned counsel for the appellant contends that the lower appellate court erred in dismissing the application filed by the appellant under Order 21, Rule 16 of the Code.

The courts below rejected the application of the appellant under Order 21, Rule 16 of the Code on the ground that the application is not in accordance with the Patna amendment of Order 21, Rule 16. The Patna amendment of Order 21, Rule 16suggests that the assignee of the decree-holder shall also file an affidavit of the transferor along with the application under Order 21, Rule 16. In the present case the appellant did not file an affidavit of the transferor admitting the transfer along with the said application under Order 21, Rule 16of the Code. Hence the courts below held that the petition is not maintainable. In this circumstance the executing court ought to have directed the appellant to file such an affidavit of the transferor. The Patna amendment requires that such affidavit of the transferor admitting the transfer shall be filed with the application. If no such affidavit has been filed along with the application, in my opinion, the limitation will run from the date of filing such affidavit along with the petition under Order 21, Rule 16 of the Code. The executing court ought not to dismiss the execution petition merely because the assignee of the decree holder did not file an affidavit of the transferor admittinig the transfer along with the application. If there is any delay in filing such affidavit, the court will also consider the applicability of Section 14 of the Limitation Act on the facts and circumstances of the case. In my opinion, the courts below erred in dismissing the petition on the ground of non-filing of the affidavit of the transferor in the present case as required by the Patna amendment of Order 21, Rule 16of the Code.

The petition under Order 21, Rule 16of the Code has also been challenged on the ground of limitation. The application under Order 21, Rule 16of the Code was filed on 20th September, 1965, in execution case 132 of 1965. The respondent succeeded before the lower appellate court on the ground of limitation. In the opinion of the lower appellate Court, Article 182 of the Indian Lim Act, 1908 will apply. There is no doubt that Article 182 will apply in the present case. It is not disputed that the restitution petition u/s 144 of the Code was filed within the period of limitation by the heirs of the decree-holder. It is also settled law that application for restitution is an application in execution [see the Full Bench decision of five Judges of this Court in Nanhu Prasad Singh Vs. Nandan Missir and Others, . The execution court allowed the restitution u/s 144 of the Code in miscellaneous case 348 of 1958 in favour of the heirs of the decree holder. Against that order, the respondent preferred miscellaneous appeal 68/4 of 1960 which was dismissed on 28-2-1961. It is said that under Article 182 of the Indian Lim. Act, 1908 the period of limitation would be three years from the date of the decree or order. In the present case it is not disputed that the application for restitution u/s 144 of the Code was filed within three years from the date of the decree. According to the Full Bench decision of the Patna High Court in Bhaunath Singh's case (supra) an application for restitution is an application in execution. In the present case an appeal was preferred against the order of the executing court and as such a fresh period of limitation of three years- will start from the appellate court order dated 28-2-1961 passed in miscellaneous appeal 68/4 of 1960. The decree-holder or the assignee of the decree-holder can file an application for obtaining delivery of possession under Order 21, Rule 35 of the Code within 3 years under Article 182 of the Indian Lim. Act, 1908. Three years will elapse on 28th February, 1964. In the meantime Indian Lim. Act, 1963 came into force on January, 1964. Hence Article 136 of the Indian Lim. Act, 1963 will apply. Article 136 suggests that the period of limitation will be 12 years from the date of the decree or order. If it is so, the application filed by the appellant on 20th September, 1965 under Order 21, Rule 16 of the Code was within the period of limitation of 12 years as envisaged under Article 136 of Lim. Act, 1963. The limitation period will commence from the date of appellate order, i.e. 28-2-1961. In this circumstance I hold that the application filed by the appellant under Order 21, Rule 16 of the Code was within time. In this view of the matter, I remand the case to the lower appellate court for fresh decision in accordance with law.

In the result, the lower appellate court order is set aside and the case is sent back for fresh decision in accordance with law. The parties will bear their own costs.