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Jibhai Mahipati and anr. Vs. Parbhu Bapu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom59
AppellantJibhai Mahipati and anr.
RespondentParbhu Bapu and anr.
Excerpt:
limitation - decree--execution--application--act xiv of 1859--1871. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of..........that of the old law; but the change was no doubt made advisedly, and in an analogous case, abel v. lee l.r. 6 c.p. 365, willes, j. said: 'i utterly repudiate the notion that it is competent to a judge to modify the language of an act of parliament in order to bring it into accordance with his views as to what is right or reasonable'. l.r. 6 c.p. 371 we must give effect to the law as we find it, and the law barred the application in this case.2. we may observe that, if the order made on the previous application of the respondent is still unexhausted by there being matter to which its terms apply in particulars as to which these terms have not yet been satisfied, it is apparently open to the court to give effect to that order, notwithstanding that any new application for execution is.....
Judgment:

West, J.

1. The application in this case was presented for execution of a decree, the last prior application for execution of which had been made in February 1868. Upon that earlier order, partial execution had been obtained and proceedings sufficient apparently to bar limitation under the Act of 1859, had been going on till 30th September 1871. The application made to the Court on that day was not one which, according to the case of Gouree Sunkur Tribedee v. Arman Ali Chowdhry 21 Cal. W.R. 309 Civ. Rul), could bar limitation under Act IX of 1871. It was, indeed, merely a request or suggestion that the Collector should be directed to carry out a direction sent to him in 1868 in a particular way; but if it had been an application of a kind which in itself could serve as a bar to limitation, it was then already too late on the day when it was made, which was more than three years after February 1868, and, being thus inadmissible, could not mark a point of time from which a fresh period of limitation could be counted extending over October 1872, when the application was presented, with which we have now to deal. It has been urged that, as execution was in a manner going on, and interest was accruing due under the decree, the time when each instalment should have been paid ought to be reckoned as the day when the decree became operative, and that the period of limitation would thus be counted from a time within three years of October 1872; but we do not think that because interest may be awarded, it was intended by Act IX of 1871 to keep a decree perpetually in force without renewed applications. It may be rather hard upon the judgment-creditor in this case that, although he was doing all that the old law required until the new law came into force, and, indeed, for some time afterwards, he should suddenly find himself barred by a provision of a much more stringent character than that of the old law; but the change was no doubt made advisedly, and in an analogous case, Abel v. Lee L.R. 6 C.P. 365, Willes, J. said: 'I utterly repudiate the notion that it is competent to a Judge to modify the language of an Act of Parliament in order to bring it into accordance with his views as to what is right or reasonable'. L.R. 6 C.P. 371 We must give effect to the law as we find it, and the law barred the application in this case.

2. We may observe that, if the order made on the previous application of the respondent is still unexhausted by there being matter to which its terms apply in particulars as to which these terms have not yet been satisfied, it is apparently open to the Court to give effect to that order, notwithstanding that any new application for execution is barred:

3. The order of the District Judge is reversed, and that of the Subordinate Judge restored, but we make no order as to costs of this appeal.


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