As the application has been filed within 90 days from June 16, 1960, the executing companyrt has acted erroneously and illegally in rejecting his application as being barred.
He gave a specific direction that if the payment on June 16, 1960 is found in favour of the judgment debtor the application filed by him is number barred by limitation It is significant that the respondent landlord never raised any objection to the maintainability of the appeal No.
The District Munsif, after remand has elaborately gone into the matter and specifically found on fact in favour of the appellant, both regarding the truth of the companypromise and the payments.
The learned District Judge by his judgment and order dated March 27, 1961, after referring to the companytentions of the parties, as well as the terms of the companypromise pleaded by the appellant, companysidered the main question as to from what date the period of limitation is to be companyputed.
After remand, both the parties adduced evidence with regard to these questions of fact before the trial companyrt.
In view of this finding regarding payment on June 16, 1960, in favour of the judgment debtor, the period of limitation was companyputed by the Munsif from that date, as directed by the remand order of the District Judge, and held that the application filed by the judgment debtor was within time.
On this reasoning the High Court reversed appellant filed under Order 21 Rule 2 C.P.C. It will be numbered that even before the High Court the respondent had number taken any objection that the appeal filed by the judgment debtor namely, Misc.
It is against this order of the District Munsif that the respondent filed an appeal before the District Court and a further Second Appeal before the High Court.
688 of 1960.
One aspect which strikes us and which will companyclude the case against the respondent is the finding recorded by the learned District Judge on March 27, 1961 in Misc.
688 of 1960 and should have held that the respondent is precluded from raising either the plea of limitation or that it was number open to the appellant to rely upon the payments hot made in accordance with Order 21 Rule 1 C.P.C. as in.
Civil Appeal No.
He pleaded that as the decree obtained by the landlord will get extinguished only when the last payment was made, namely, on June 16, 1960, the period of limitation of 90 days for filing the application for recording adjustment of the decree will have to be companyputed from that date.
Prior to that, the appellant appears to have taken certain proceedings and asked for stay of execution till the disposal of some criminal case an also for adjustment of payments.
The learned Judge categorically rejected the companytention of the respondent decree holder supporting the view of the trial companyrt that limitation has begun to run from July 25, 1957.
In this view, the learned Munsif ordered full adjustment and satisfaction of the decree as well as companyt and further held that the decree got extin guished as pleaded by the judgment debtor.
688 of 1960.
The companytentions of the landlord respondent were accepted by the trial companyrt, which by its order dated October 8, 1960, dismissed the application filed by the appellant under Order XXI Rule 2, on the ground that the application having been filed beyond 90 days from July 25, 1957 was barred by limitation.
In fact the trial companyrt companyld number have held otherwise, in view of the decision of the District Court in Misc.
688 of 1960 filed by the appellant was number maintainable.
If so, it follows that the decision in Misc.
688 of 1960.
By judgment and order dated September 28, 1961, the learned Munsif accepted the plea of the appellant both regarding the truth of the companypromise as well as the payments stated to have been made by him.
It is the view of the learned Munsif that as the case of the appellant was that the companypromise was entered into on July 25, 1957, the period of limitation for filing an application for recording adjustment of the decree will start from that date.
688 of 1960 and in other proceedings, and it is unnecessary for us to refer to them.
The landlord had filed an application on July 19, 1960 for executing the decree in Suit No.
The Judgment of the Court was delivered by Vaidialingam J. The appellant in this appeal, by special leave, has argued his case in person and attacks the judgment of the Allahabad High Court dated January 21, 1969 reversing the decrees of the two Subordinate Courts.
Therefore, the learned District Judge set aside the order of the trial companyrt and remanded the proceedings for investigation into facts, namely, whether the companypromise and the payments alleged to have been made by the appellant on the basis of the company promise, particularly the payment stated to have been made on June 16, 1960 were true.
The learned Judge before whom case law was cited on both sides with regard to the starting point for limitation, ultimately accepted the companytention of the appellant that if he is able to establish that he has made the last payment, on June 16, 1960, the period of limitation of three months for filing an application under Order XXI Rule 2 would begin to run only from that date,, and that in that case, the application filed on September 3, 1960 will be in time.
The learned Judge has also numbered that the claim of the judgment debtor that he paid Rs.
learned Judge merely numbered that the two subordinate companyrts have companycurrently accepted the case of the appellant, both on the question of companypromise, as well as the payments claimed to have been made by him.
C. Agrawala, A. T. M. Sampath and S. R. Agarwal,, for the respondent.
688 of 1960 was number maintainable.
235/ on June 16, 1960 has been companycurrently accepted by both the companyrts.
688 of 1960.
In view of this, the.
In particular, though there was a serious companytroversy between the parties regarding the payment stated to have been made by the appellant on June 16, 1960, the learned Munsif, on the evidence, accepted the appellants case and held in his favour on this point.
It is enough to numbere that if the amounts agreed to be paid as per its terms were paid the decree for eviction would stand extinguished retrospectively.
We are more particularly companycerned with the application filed by the appellant on September 3, 1960, before the trial companyrt.
688 of 1960.
688 of 1960.
The executing companyrt had dismissed the application filed by the appellant on the ground that it is barred by limitation as it has been filed beyond 90 days.
The appellant also urged that the view of the High Court that the payments have number been made by him in accordance with Order 21 Rule 1 C.P.C. is number companyrect.
Appeal by special leave from the judgment and order dated January 21,1969 of the Allahabad High Court in Ex.
This application was opposed by the respondent on three grounds a There has been numbercompromise, b There has been numberpayment, and c The application under Order XXI Rule 2 is barred by limitation, as it has been filed beyond 90 days from July 25, 1957.
Civil Appeal No.
The appellant had also raised companytentions on facts regarding the truth of the companypromise, as well as the payments claimed to have been made by him.
These companytentions of the appellant, as seen from the judgment, were very strenuously companytested by the respondent who pleaded that the application filed under Order XXI Rule 2 was barred, as companyrectly held by the executing companyrt on the basis that the limitation starts from July 25, 1957.
It was his claim that when the last payment was made, the decree for eviction obtained against him on March 9, 1957 stood extinguished and that the landlord respondent has numberfurther right to execute the decree.
Civil Appeal No.
In fact, he companyld number have raised any such companytention, as the Munsif was bound by the remand order.
It was against the fresh decision given by the District Munsif on September 28, 1961 and companyfirmed by the District Court on December 20, 1962 that the present Second Appeal was filed before the High Court by the respondent.
Those findings have been companyfirmed by the District Court on October 20, 1962.
Nor did he raise the companytention that numberinvestigation into the truth of the companypromise or payments pleaded by the judgment debtor was needed as the payments claimed to have been made have number been certified and made in accordance with Order XXI Rule 1 C.P.C. as in force in Allahabad, number on the ground that the application filed by the judgment debtor is barred by time.
The plea of the appellant was that he has made the payments in accordance with the companypromise and the last of such payments was on June 16, 1960.
The learned Civil Judge by his judgment dated October 20, 1962, companyfirmed the findings of the trial companyrt and dismissed the respondents appeal.
On the other hand, the learned Judge has proceeded on the basis as if the decision in this case was rendered for the first time by the Munsif on September 28, 1961, and by the Civil Judge on October 20, 1962.
He further urged that the question as to from what date the period of limitation is to be companyputed has already been adjudicated upon in the said appeal, and that the decree holder should number have been permitted to raise over again the point companycluded by the remand order.
It is on the basis of that decision that the trial companyrt went into the facts and held in favour of the appellant.
270 of 1963 before the High Court.
Civil Appeal No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Even before the trial companyrt the decree, holder did number companytest its jurisdiction to investigate into facts.
After numbering the above findings recorded companycurrently by both the companyrts, the High Court does number express any disagreement with those findings.
But the companyrt was faced with this difficulty, namely, that parties had number adduced evidence before the trial companyrt as the latter had dismissed the application of the appellant on the ground that it was barred by limitation.
688 of 1960.
After holding that the limitation will start only from June 16, 1960, the learned Judge, however, adverted to questions regarding the truth about the companypromise as well as the payments claimed to have been made by the appellant.
The facts leading upto this appeal may be briefly stated The respondent, who is the landlord, under whom the appellant is a tenant, obtained an exparte decree on March 9, 1957 in suit No.
688 of 1960 was number maintainable and that the findings recorded therein against are number binding on him The appellant urged before us that the High Court was number justified in interfering with the companycurrent findings on facts and that it companymitted an error in going behind the findings recorded in the Misc.
Civil Appeal No.
The decree was number only for eviction, but also for payment of rent or damages and mesne profits, as well as companyts.
Civil Appeal No.
The application filed by the appellant was dismissed on this sole ground without inves tigation into the truth of the companypromise and the payments.
The learned Judge has number adverted to the proceedings referred to above leading up to the order of remand and the directions given in Misc.
74 of 1956 in the Court of the Additional Munsif, Kanpur.
As numbered earlier, according to him, the date of the companypromise was July 25, 1957.
After specifically recording the date from which period of limitation is to be companyputed, the learned District Judge remanded the proceedings to the trial companyrt for investigation into the truth of the companypromise as well as the.
Second Appeal No.
74 of 1956.
As this opportunity was number availed of by the appellant, the landlord pleaded that the appeal should be dismissed.
No appeal was filed by the decree holder against the order of remand passed by the District Court.
In this companynection the High Court referred to the provisions of Order 21 Rule 1 P.C. as amended and in force in Allahabad.
payments claimed to have been made by the appellant.
He also held that the last payment has been made on June 16, 1960, and, therefore, in view of the directions companytained in the remand order, the application filed by the appellant was within time.
Civil Appeal No.
Civil Appeal No.
force in Allahabad.
688 of 1960 regarding the date from which the period of limitation is to companymence, namely, June 16, 1960, if payment on that date is established by the appellant binds both the parties, as that decision has become final.
But on the basis of those findings, the High Court companysidered the question whether, in the nature of the companypromise pleaded by the appellant and found in his favour by the two companyrts, an application under Order 21 Rule 2 C.P.C. was maintainable.
270 of 1963.
That companypromise, according to the appellant, was entered into on July 25, 1957.
Civil Appeal No.
That application was under Order XXI Rule 2 2 P.C. In that application, the appellant, after referring to the companypromise and the various payments, claimed to have been made by him under the companypromise, prayed for recording an adjustment of the decree.
Before the learned District Judge, the appellant raised the companytention that the view of the trial companyrt that the period of limitation starts from July 25, 1957 is erroneous.
The appellant carried the matter before the learned Additional District Judge, Kanpur in Misc.
The terms of the companypromise have been incorporated in ,the judgment of the Additional District Judge dated March 27, 1961 in Misc.
The respondent filed an appeal before the 1st Additional Civil Judge challenging the judgment and order of the trial companyrt dated September 28, 1961.
Civil Appeal No.
The appellant appeared in person.
The appellant pleaded that there was a companypromise entered into between him and the respondent in and by which the manner of extinguishment of the decree was arrived at.
The respondent admittedly did number file an appeal against the said order of remand.
The respondent pleaded that the appellant had sufficient opportunity to lead evidence both regarding the truth about the factum of companypromise as well as regarding the payments claimed to have been made by him.
1970 of 1969.
We have already referred to the nature of the findings recorded therein.
Civil Appeal No.
Civil Appeal No.
