Chowdhury Ajodhya Nath Pahary Decree-Holder, v. Chowdhory Srinath Chandra Pahary Judgment-Debtor, .

The Judgment of the Court was as follows:—

This is an appeal by the decree-holder against an order of dismissal made on an application for execution of a decree. The decree was made by consent of parties on the 26th June 1915. The first application for execution was made on the 24th June 1916. Thereupon a writ of attachment was issued. The writ was returned unserved and on the 4th August 1916 the Court directed a fresh attachment to issue in the following terms: “The decree-holder is to file process and process-fees within five days.” This order was carried out. But on the very next day, the judgment-debtor filed a petition under Or. 21, r. 2 of the Code of Civil Procedure to the effect that the decree had been satisfied out of Court and consequently no execution could issue on the basis thereof. This objection was numbered as a separate case. The two cases were adjourned from time to time and on the 9th December 1916 the objection case as well as the execution case came up for consideration. The objector applied for further time but the Court refused adjournment on the ground that the case was already very old. The pleader for the objector thereupon stated that he had no further instructions. The objection case was consequently dismissed for default. We find thereafter the following entry in the order sheet. “The pleader for the decree-holder has no objection to his case being dismissed provided he gets his costs. The execution case is dismissed for default. The decree-holder will get his costs.” Subsequently, on the 27th November 1919 the present application was made. The judgment-debtor objected that the application was barred by limitation inasmuch as it had been presented more than three years after the 24th June 1916, when the previous application for execution had been made. We are of opinion that this contention should have been treated as unsustainable. It is plain that the execution proceedings which had been initiated on the 24th June 1916 had been suspended by reason of the objection by the judgment-debtor. During the period the objection remained under consideration of the Court, execution could not obviously proceed. As soon as the objection was abandoned on the 9th December 1916, it became the duty of the Court to proceed with the application for execution. The decree-holder had done everything that he was required to do to enable the Court to proceed with the case. He had filed processes and had paid process-fees as directed on the 4th August 1916. The order for dismissal made on the 9th December 1916 must accordingly be treated as equivalent to an order for striking off the case or removing it from the file for the convenience of the Court. [Kishen Lal v. Charat Singh (1), Puddomonee v. Muthoora Nath (2), Peary Lal v. Chandi Charan (3), Daud Ali v. Ram Prasad (4) and Yakub Ali v. Durga Prasad (5)]. In these circumstances, the principle applicable is that stated in the case of Madhabmani Dasi v. Lambert (6). “An application for execution of a decree may be treated as one in continuation or revival of a previous application, similar in scope and character, the consideration of which has been interrupted by the intervention of objection and claim subsequently proved to be groundless or has been suspended by reason of an injunction or like obstruction.” In support of this view, reliance may be placed on the decision of the Judicial Committee in Quamaruddin Ahmed v. Jawahir Lal (7), which has been recently applied in Rameshwar Singh v. Homeswar Singh (8).

We are of opinion, therefore that this appeal must be allowed. The order of the lower Appellate Court is set aside and the case is sent buck to the Court of first instance in order that the execution may proceed.

The decree-holder will get his costs throughout. We assess the hearing-fee in this Court at one gold mohur.

H.D.C

Appeal allowed;

Case remanded.