Case: Santi Ranjan Dass Gupta Vs. M/S Dasuram Mirzamal

The respondent on 7 January, 1952 obtained a decree against the appellant for the sum of Rs. 71, 980 in a money suit filed in the Court of Subordinate Judge, Gauhati. On 8 December, 1956 the respondent decree-holder filed an application No. 89/56 for executing the said decree. On 15 July, 1957 the appellant, the judgment debtor, filed an application pleading adjustment of the decree. On 15 April, 1958 the judgment debtor withdrew the said application. On 18 December, 1957 the Subordinate Judge Gauhati dismissed the decree-holders application No. 89/56. The decree-holder preferred an appeal. The High Court at Gauhati on 1 July, 1959 set aside the order of the Subordinate Judge and allowed the appeal for execution of the decree.Meanwhile on 18 January, 1958 the appellant judgment debtor in the Gauhati suit obtained a decree against the respondent for the sum of Rs. 1, 22, 000 in the Court of the Subordinate Judge at Nowgong. In execution of the decree in the Nowgong suit the appellant on or about 29 January, 1958 obtained an attachment of the respondents decree passed in the Gauhati suit.On 13 August, 1959 the Subordinate Judge, Gauhati struck off the execution application No. 89/56 from the file.The respondent filed an appeal against the decree obtained by the appellant in the Nowgong suit. The High Court on 28 April 1964 accepted the appeal filed by the respondent and dismissed the Nowgong suit filed by the appellant.On 27 July, 1965 the respondent filed an application for execution in the Court of the Subordinate Judge, Gauhati. The appellant preferred an objection contending that the application is barred by limitation. On 4 March, 1966 the Subordinate Judge dismissed the execution application as barred by time.On 26 July, 1967 the High Court accepted the appeal filed by the respondent and directed the execution to proceed.

Reasoning:
The order obtained by the appellant attaching the decree of the respondent in the Gauhati suit has been rightly held by the High Court to have precluded the respondent from executing the decree during the time the attachment was in force. The other conclusion of the High Court that the execution application dated 27 July, 1965 was a continuation of the earlier application is also correct. The order striking off the execution application has been rightly construed by the High Court as merely consigning the application to the Record Room for statistical purposes. T he application dated 27 July, 1965 indicates in column 2 as the respondent rightly stated that the previous application for execution was struck off on 13 August, 1959 because of the order of attachment passed by the Nowgong court. The attachment order was nullified only when the appellants suit was dismissed by the High Court on 28 April, 1964. The respondents decree became executable at that time. The inescapable conclusion is that the application for execution on 27 July, 1965 is a continuation of the old application.