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Balaram Vithalchand Gujar Vs. Maruti Devji Dubal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 50 of 1913
Judge
Reported inAIR1915Bom40; (1915)17BOMLR178
AppellantBalaram Vithalchand Gujar
RespondentMaruti Devji Dubal
DispositionAppeal dismissed
Excerpt:
.....act, which gave a fresh starting point to limitation and from that starting point time would not run against them until after they attained majority :-;overruling the contention, that the fresh periods which could be obtained under the provisions of article 182 of the indian limitation act did not escape the provisions of section 48 of the civil procedure code and that the fresh application was time-barred as it was made more than twelve years from the date of the default.;section 48 of the civil procedure code of 1908 is more extensive in its application than the previous section 230 of the civil procedure code of 1882; and it is wide enough to cover a decree based on a compromise. - - the fresh application, therefore, with which we are concerned' being made more than twelve..........for execution which had been instituted by naro was struck off. on the 1st of september 1909, a fresh application to execute the original decree was presented on behalf of the appellants, one of them having attained majority.2. the objection is taken on behalf of the respondents that the application being a fresh application for execution, made after the expiration of twelve years from the date of the default mentioned in the consent decree, in respect of which the applicants sought execution, was barred by section 48 of the code of civil procedure.3. it is contended by the appellants that their case should succeed if they show that there was a fresh step-in-aid of execution made under the indian limitation act of 1877, article 179, or the present indian limitation act, article 182.....
Judgment:

Basil Scott, Kt., C.J.

1. On the 29th of July 1884, a decree was passed in favour of one Naro upon a compromise, and according to its terms, certain instalments were payable, and upon default, as provided in the decree, the judgment-creditor was entitled to claim possession of a share or shares in certain property. Default having been made in 1892, the judgment-creditor became entitled to apply for possession and he, therefore, made an application for execution of the decree. In 1898 he died, and the execution proceedings were carried on thereafter by his brother as his representative. In March 1902, that brother died leaving the present appellants, his minor sons. On the 27th of June 1902, by their guardian or next friend, they applied to be brought on the record as representing their father for the purpose of continuing the execution proceedings, and in September 1902, their application was rejected, and the original application for execution which had been instituted by Naro was struck off. On the 1st of September 1909, a fresh application to execute the original decree was presented on behalf of the appellants, one of them having attained majority.

2. The objection is taken on behalf of the respondents that the application being a fresh application for execution, made after the expiration of twelve years from the date of the default mentioned in the consent decree, in respect of which the applicants sought execution, was barred by Section 48 of the Code of Civil Procedure.

3. It is contended by the appellants that their case should succeed if they show that there was a fresh step-in-aid of execution made under the Indian Limitation Act of 1877, Article 179, or the present Indian Limitation Act, Article 182 which gave a fresh starting point to limitation, and that from that starting point time would not run against them until after they attained majority. Unfortunately, however, for that argument, Article 182 of the Indian Limitation Act, which was in force at the time of the last application to execute the decree, shows that the fresh periods which could be obtained under the provisions of that Article do not escape the provisions of Section 48 of the Civil Procedure Code, the words of Article 182 being 'For the execution of a decree of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908.' Section 48 of the present Code is more extensive in its application than the previous Section 230 of the Code of 1882, and it is wide enough to cover the compromise decree of which execution is sought in the present case. The fresh application, therefore, with which we are concerned' being made more than twelve years from the date of the default, the appeal must fail. We affirm the decision of the lower appellate Court and dismiss the appeal with costs.


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