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Salekhan Valad Janglikhan Deshmukh Vs. Vishvanath Mahadeo Tilak - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1911)13BOMLR22
AppellantSalekhan Valad Janglikhan Deshmukh
RespondentVishvanath Mahadeo Tilak
DispositionAppeal dismissed
Excerpt:
limitation act (xv of 1877), article. 179-decree-execution-step-in-aid of execution-civil procedure code (act xiv of 1882), section 232-decree-holder- transfer of decree by act of parties-assignment in writing of the decree- the assignment can be produced at a late stage of execution proceeding by the transferee. - .....of article 179 of the limitation act, inasmuch as that application was presented not by the decree-holder, but by the decree-holder's brother who was not then an assignee in writing as required by s. 232 of the code of civil procedure of 1882.3. the fact no doubt is so, but it appears to us that that fact ought not to be considered fatal to the present application. we think that the right view to take is that the technical defect which then existed in the application of the 3rd of june 1908 was cured by the subsequent production of an assignment in writing. this opinion seems to us to accord with the principle upon which it has been held in the high courts of bombay, calcutta and allahabad, that an application by the representatives of the deceased decree-holder will keep the.....
Judgment:

Batchelor, J.

1. The facts of this case are explained in our interlocutory Judgment of the 14th of October last, in which we granted the respondent one month's time to produce, if he was able to do so, an assignment in writing. from his brother Damodar. The assignment in writing has now been produced, and the objection taken on the ground of its absence now admittedly fails.

2. It is, however, contended for the appellant that the application is barred by time. The application was made on the 27th July 1908, and prior to that there had been four applications of which the successive dates are : 22nd March 1901, 7th April 1902, 18th April 1905, and 3rd June 1908. The appellant's case is that the application referred to in 1908 was not a step-in-aid of execution within the meaning of Article 179 of the Limitation Act, inasmuch as that application was presented not by the decree-holder, but by the decree-holder's brother who was not then an assignee in writing as required by s. 232 of the Code of Civil Procedure of 1882.

3. The fact no doubt is so, but it appears to us that that fact ought not to be considered fatal to the present application. We think that the right view to take is that the technical defect which then existed in the application of the 3rd of June 1908 was cured by the subsequent production of an assignment in writing. This opinion seems to us to accord with the principle upon which it has been held in the High Courts of Bombay, Calcutta and Allahabad, that an application by the representatives of the deceased decree-holder will keep the decree alive, although they may not have then obtained a certificate under the Succession Certificate Act, in consequence whereof the application is dismissed. See Hafizuddin Chowdhry v. Abdool Aziz, ILR (1893) Cal. 755) Balkishan Shiwa Bakas v. Wagarsing ILR (1894) 20 Bom. 76 and Kalian Singh v. Ram Charan ILR (1898) All. 34. As to the general manner in which these provisions of the law should be read, we may refer to what was said by Mr. Justice West in Hari v. Narayan ILR (1887) 12 Bom. 437.

4. For these reasons, we think, that this appeal fails and we dismiss it with costs.


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