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Ram Raj Dassundhi Vs. Mt. Umraji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All345
AppellantRam Raj Dassundhi
RespondentMt. Umraji and anr.
Excerpt:
.....employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the appeal would fail on this technical ground alone. 2. even on the merits the appeal must fail......that the present application for execution was made more than throe years after the decree. the decree-holder, however claimed to save limitation by virtue of an application dated the 30th of may 1924 filed in the court of the munsif. the courts below have found that when the small cause court which had passed the decree was abolished the small cause court cases were transferred to the court of the subordinate judges who alone had small cause court powers.. the munsif in whose court the application was filed had no such power. he had therefore no jurisdiction to entertain the application as the decree had never been transferred to his court. the application filed in his court was not an application in accordance with law. the learned advocate for the appellant contends that inasmuch.....
Judgment:

Sulaiman, J.

1. This is a decree-holder's appeal arising out of certain execution proceedings. The decree was passed by a Small Cause Court for a sum of Rs. 115-4. No second appeal lay in the original case. It is clear that no second appeal lies on the execution side. The appeal would fail on this technical ground alone.

2. Even on the merits the appeal must fail. The Court below has found that the present application for execution was made more than throe years after the decree. The decree-holder, however claimed to save limitation by virtue of an application dated the 30th of May 1924 filed in the Court of the Munsif. The Courts below have found that when the Small Cause Court which had passed the decree was abolished the Small Cause Court cases were transferred to the Court of the Subordinate Judges who alone had Small Cause Court powers.. The Munsif in whose Court the application was filed had no such power. He had therefore no jurisdiction to entertain the application as the decree had never been transferred to his Court. The application filed in his Court was not an application in accordance with law. The learned advocate for the appellant contends that inasmuch as the decree-holder was acting bona fide under a wrong impression and was prosecuting another proceeding with due diligence the provisions of Section 14 of the Limitation Act would be applicable and that in any case Section 5 should apply. Neither of these contentions can be accepted. The Court-below has not found that the decree-holder acted with due diligence. Furthermore, neither Section 14 nor Section 5 of the Limitation Act is applicable to an application for execution. Section 14 applies exclusively to suits, and Section 5 applies only to such applications as to which it has been expressly made applicable. That section has not been made applicable to applications for execution.

3. It has been held by a Division Bench of this Court in the case of Munawar Husain v. Jani Bijai Shankar (1905) 27 All 619 following an earlier case of Chattar v. Newal Singh (1890) 12 All 64, that 'applying in accordance with law' means applying to the Court to do something which by law that Court was competent to do and not to do something which the decree-holder presumed that the Court was competent to do. Following the principle laid down in those cases I must hold that an application for execution made to a Court which has no jurisdiction to entertain it is not an application in accordance with law. The appeal is dismissed under Order 41, Rule 11, Civil P.C.


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