Mangal Mahto vs Bihari Mahto and Others

N.L. Untwalia and M.P. Verma, JJ.—This is a judgment-debtor''s Miscellaneous First Appeal from the order dated the 19th September, 1966, passed by the court below in Miscellaneous Case No. 10 of 1966, by which it has refused the objection of the appellant u/s 47 of the Code of Civil Procedure. There was a compromise decree passed on 14.9.1960. The appellant filed an application u/s 151 of the Code of Civil Procedure, asking the Court which had passed the decree to set it aside or to recall it on the ground of fraud. That Court rejected this application on 18.2.1961, holding that fraud was not proved. The appellant preferred an appeal to this Court which was eventually dismissed on 6.4.1964 on the finding that no appeal lay from the order dated 18.2.1961 of the court below. The execution case in which the objection was filed by the appellant was levied by the decree-holder-respondents on 27.4.1966. The appellant took two objections; (i) that the decree is not executable, and, (ii) that the execution case is barred by limitation. The learned Additional Subordinate Judge has repelled both the objections and hence the appeal by the judgment-debtor. In our opinion, the execution case filed on 27.4.1966 is clearly barred by limitation. Although the execution case was filed after coming into force of the Limitation Act, 1963, which came into force on the 1st January, 1964, and although according to Article 136 of the new Limitation Act, the execution case, prima facie, was not barred by limitation, it was so barred in view of the provision of Section 31(a) of the new Limitation Act, which says:

Nothing in this Act shall:--

(a) enable any suit, appeal or application to be instituted, preferred or made for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act:

According to Article 182 of the Limitation Act of 1908, the execution case had to be filed within three years of the date of the decree. This date expired on 14.9.1963. The view of the court below that since an application u/s 151 of the CPC was filed for setting aside that decree and an appeal was taken to this court from the order of the court below refusing such an application, the dismissal of the appeal by the High Court on 6.4.1964 would give the starting point of limitation for filing of the execution case is not correct. It is against the Full Bench decision of this Court in (1) Rameshwar Prasad Sahu Vs. Parmeshwar Prasad Sahu and Others, . It does not appear from the order under appeal that either in the miscellaneous case started by the filing of the application u/s 151 or in the appeal which was preferred to this Court from the order dated 18.2.1961 there was any order of stay of the execution case. Obviously, there could be none because no execution seems to have been filed during the pendency of the application u/s 151 in the court below or the appeal in the High Court. In our opinion, therefore, the period of limitation prescribed by the Indian Limitation Act, 1908, having expired before the commencement of the Act of 1963, the execution case filed on 27.4.1966 was clearly barred by limitation.

In the view which we have taken on the question of limitation, it is not necessary for us to express any opinion on the question of executability of the decree. In the result, the appeal succeeds and is allowed. The order of the court below is set aside. The execution case is dismissed as barred by limitation. There will be no order as to costs in this Court or in the court below.