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ibrahimbhai Vs. Kabulabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom72
Appellantibrahimbhai
RespondentKabulabhai and anr.
Excerpt:
.....payment of amount of decree by judgment-debtor and attachment thereupon removed--second attachment of same property ii execution of another decree--application again made by same claimant to remove attachment--order again made against him refusing to remove attachment--suit by claimant to establish ms title to attached property--limitation for such suit runs from date of order as to second attachment--limitation--limitation act xv of 1877, schedule ii, article 11. - 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 ..........having paid the money, raised on the 23rd march, 1883, on which date the plaintiff's right of action had not become barred. as the plaintiff's object was thus gained on the 23rd search, though not on his application, and as he remained then, as he is now, in possession of the property, there was really no right of action remaining to him in respect of the order of the 14th january, 1881--umesh chunder roy v. raj bullubh sun i.l.r. 8 cal. 279 the second attachment thereafter placed by defendant no. 1, in 1883, was a new and distinct act giving a new cause of action on which the plaintiff is entitled to a fresh enquiry and decision--kashinath morsheth v. ramchandra gopinath i.l.r. 8 cal. 279. we, therefore, reverse the decree of the lower, appellate court and remand the case.....
Judgment:

Birdwood, J.

1. The plaintiff was on two occasions an unsuccessful claimant under Section 278 of the Code of Civil Procedure to raise attachments placed by the defendant No. 1 on the property now in suit in execution of decrees obtained against the defendant No 2. The first order against the plaintiff was made on the 14th January, 1881; the second on the 9th June, 1883, and the present suit was brought within one year from the latter date. The District Judge has held it to be barred by time, inasmuch as it was not brought within a year from the date of the first order. But here we think that he is wrong, for though the order was made on the 14th January, 1881,- the attachment was, by reason of the judgment-debtor's having paid the money, raised on the 23rd March, 1883, on which date the plaintiff's right of action had not become barred. As the plaintiff's object was thus gained on the 23rd Search, though not on his application, and as he remained then, as he is now, in possession of the property, there was really no right of action remaining to him in respect of the order of the 14th January, 1881--Umesh Chunder Roy v. Raj Bullubh Sun I.L.R. 8 Cal. 279 The second attachment thereafter placed by defendant No. 1, in 1883, was a new and distinct act giving a new cause of action on which the plaintiff is entitled to a fresh enquiry and decision--Kashinath Morsheth v. Ramchandra Gopinath I.L.R. 8 Cal. 279. We, therefore, reverse the decree of the lower, appellate Court and remand the case for a hearing on the merits. Costs to abide the result.


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