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Raghunath Prasad Singh Vs. Lachhmi NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1925All394
AppellantRaghunath Prasad Singh
RespondentLachhmi NaraIn Singh
Excerpt:
- .....by the court below and which has been argued before us is as to whether the step taken by the decree-holder on the 26th of april, 1919, amounted to a step-in-aid of the execution of the decree-within the meaning of article 182, sub-clause (5) of the limitation act the learned subordinate judge has coma to the-conclusion that it did not amount to such a step.2. after much trouble we have been able to ascertain what exactly happened. the suit was one for partition of considerable properties and a final decree for partition-was passed as early as 1912. about that 26th of april, 1919, there were several objections raised by various judgment-debtors to the previous application for execution. on the 26fch of april, 1919, the decree-holder put in an application praying that the record of.....
Judgment:

Sulaiman, J.

1. This is a decree holder's appeal arising out of an execution of a decree the application has been dismissed on the ground that it was barred by limitation, the only objection that was considered by the Court below and which has been argued before us is as to whether the step taken by the decree-holder on the 26th of April, 1919, amounted to a step-in-aid of the execution of the decree-within the meaning of Article 182, Sub-clause (5) of the Limitation Act the learned Subordinate Judge has coma to the-conclusion that it did not amount to such a step.

2. After much trouble we have been able to ascertain what exactly happened. The suit was one for partition of considerable properties and a final decree for partition-was passed as early as 1912. About that 26th of April, 1919, there were several objections raised by various judgment-debtors to the previous application for execution. On the 26fch of April, 1919, the decree-holder put in an application praying that the record of the original case should be sent for in order that the various objections may be disposed of. He stated that the record was necessary for the purposes of their disposal. We may mention that among the objections raised there were objections that the amount claimed in the decree was not proper and that for certain items at least the judgment-debtors should have bean given credit for. On the 26th of April, 1919, the Court first passed an order that it was necessary to examine the final decree which had been sent on to the Amin along with a parwana for delivery of possession and it ordered that the decree should be sent for from him. Later on the Court ordered that the record should also be sent for.

3. The question, before us is whether the application of the decree-holder that the record should be sent for, which he filed on the 26th April, 1919, was an application to take a step-in-aid of the execution. We have far from saying that every application to send for a record made by a decree-holder necessarily amounts to such a step, for every case must depend on its own facts and circumstances. If an application is not a bona fide one or is absolutely unnecessary and futile, it may fall short of amounting to such a step. But in this case in view of the objections which had bean raised, it was essential that the (record, or, at any rate, the final decree should be before the Court. The Court 'before whom the application was made (considered that it was necessary, and 'actually granted the application. The step taken by the decree-holder was certainly in prosecution of his application for execution and in order to gat rid of the objections which were an obstacle in the way, We, therefore, think that it did coma under Section 182(5) of the Limitation Act.

4. We may refer to the case of Abdul Khadar Rowther v. Krishnan Malaval Nair (1915) 38 Mad. 695 which though not exactly similar to the present case is somewhat analogous. The present application was filed on the 26th of April. 1922, just within three years-of the step taken on the 26th of April, 1919, and was, therefore, within limitation. The-result, therefore, is that this appeal is allowed, the decree of the Court below is set aside, and the case sent back to the Court below for disposal according to law. In view of the trouble which has been caused to us in trying to ascertain for ourselves what the facts are, we direct that the parties should bear their own costs of this appeal.


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