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Muhammad HusaIn Khan Vs. Ram Sarup and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All9
AppellantMuhammad HusaIn Khan
RespondentRam Sarup and anr.
Excerpt:
execution of decree - certificate by decree-holder of payment out of court--act xv of 1877 (limitation act), schedule ii, no. 179 (4)--' step in aid of execution'--civil procedure code, sections 257, 258. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain..........a 'step in aid of execution,' justifies us in the view that when the application is made by the decree-holder, that is equally a step in aid of execution, such as will keep the decree alive. section 257 of the code shows that a payment out of court to the decree-holder may be regarded as a payment under a decree; and section 258 shows how the judgment-debtor and the decree-holder can each take proceedings to have payment out of court; recognized by the court. the case of t. d. bandyopadhya v. b. l. mukhapadaya i. l. r., 12 cal., 608, seems to me to be exactly applicable to the facts of the present case. i must, however, frankly say that if the matter was res integra, and a matter to be decided on first impression, i should be inclined to consider whether a payment out of court is more.....
Judgment:

Mahmood, J.

1. We must, I think, hold that the ratio decidendi of the case of Gansham v. Mukha I. L. R., 3 All., 320, where it was held that when the application was made by the judgment-debtor it was a 'step in aid of execution,' justifies us in the view that when the application is made by the decree-holder, that is equally a step in aid of execution, such as will keep the decree alive. Section 257 of the Code shows that a payment out of Court to the decree-holder may be regarded as a payment under a decree; and Section 258 shows how the judgment-debtor and the decree-holder can each take proceedings to have payment out of Court; recognized by the Court. The case of T. D. Bandyopadhya v. B. L. Mukhapadaya I. L. R., 12 Cal., 608, seems to me to be exactly applicable to the facts of the present case. I must, however, frankly say that if the matter was res integra, and a matter to be decided on first impression, I should be inclined to consider whether a payment out of Court is more than what its English phraseology denotes. I might, under some circumstances, have considered that matter; but the ruling of this Court and that of the Calcutta Court, that a payment certified by the decree-holder or judgment-debtor is a 'step in aid of execution,' from which I am not prepared to dissent, renders it unnecessary for me to enter into the question more fully. I hold therefore that the applications of the 2nd March 1882, and the 26th April 1883, if the information in them contained was true, were steps in aid of execution within the meaning of Article 179, Clause 4, col. 3 of the Limitation Act. But the judgment-debtor raised a distinct plea that the allegations of payment contained in those applications were wholly untrue. The question whether they were true or untrue has not been tried in the Courts below. Giving the Calcutta ruling above referred to its full force, it is now necessary to ascertain whether the payments notified to the Courts by the decree-holder on the 2nd March 1882, and the 26th April 1883, were, in fact, payments by the judgment-debtor, and the case must be remanded to the Lower Appellate Court under Section 566 of the Code for a finding on the above points.

2. Upon a return of the findings, ten days will be allowed to the parties for objections.

Tyrrell, J.

3. I am by no means satisfied that the applications of March 1882 and April 1883 can be considered as 'steps in aid of execution' in the sense of Clause 4, Article 179 of the Limitation Act; but the view of the Lower Appellate Court being supported by the authority of a Calcutta ruling, I am unwilling to interfere with its decision so far. The truth of the statements of the decree-holder as to these payments must be ascertained. I concur therefore in the order, of remand proposed by Mr. Justice Mahmood.


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