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Madho Prasad Vs. Kesho Prasad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All337
AppellantMadho Prasad
RespondentKesho Prasad
Excerpt:
execution of decree - limitation--act no. xv of 1877 (indian limitation act), schedule ii, article 179--civil procedure code, sections 234, 248--applications for execution made without any representative of the deceased judgment-debtor being brought on to the record. - .....the effect of determining any attachment or any order for sale which had previously been made. the decree-holder brought his suit under section 283 of the code to have his right declared to execute his decree against this property. in that suit he ultimately succeeded, but the decree establishing his right did not reinstate the attachment or any order for sale, if any, which may have been made. the decree-holder having by his suit established his right to execute his decree against this property, it was for him to take the necessary steps to put his decree in execution. on the 2lst of august 1886, he filed an application for the execution of his decree. before the 21st of august 1886, the judgment-debtor had died. the decree-holder appears to have assumed that he had a decree in rem.....
Judgment:

John Edge, Kt., C.J. and Blair, J.

1. This appeal arises in the execution of a decree. The decree was passed on the 25th of January 1878. On the 9th of January 1879,the first application was made for execution. On the 19th of March 1880, the second application was made. On the 8th of June 1880, the third application was made. After the last-mentioned application had been made, one Shoo Dial filed an objection to the execution of the decree against this property. His objection was filed under Section 278 of the Code of Civil Procedure. The objection was allowed. The allowance of that objection had the effect of determining any attachment or any order for sale which had previously been made. The decree-holder brought his suit under Section 283 of the Code to have his right declared to execute his decree against this property. In that suit he ultimately succeeded, but the decree establishing his right did not reinstate the attachment or any order for sale, if any, which may have been made. The decree-holder having by his suit established his right to execute his decree against this property, it was for him to take the necessary steps to put his decree in execution. On the 2lst of August 1886, he filed an application for the execution of his decree. Before the 21st of August 1886, the judgment-debtor had died. The decree-holder appears to have assumed that he had a decree in rem which he could proceed to execute without bringing upon the record or giving notice to any representative of the deceased judgment-debtor. On the 4th of December 1887, he filed another application, still without anyone to represent the estate of the deceased judgment-debtor. On the 23rd of July 1889, he filed his sixth and last application. On the 21st of December 1888, he had obtained an order for attachment, there being at that time no respondent to his application representing the estate or the interest which had been in the deceased judgment-debtor.

2. It appears to us that this was a case to which Section 234 and Section 248 of the Code of Civil Procedure applied, and that the proceedings in execution after the death of the judgment-debtor made in the absence of and without notice to the representative of the judgment-debtor were ineffectual proceedings. The Subordinate Judge in the present case has held that the present application for execution is barred by limitation, and he has so held having come to the conclusion that the applications which were made when there was no representative of the deceased judgment-debtor on the record were ineffectual. On behalf of the decree-holder appellant the decision of the Full Bench in Sheo Prasad v. Hira Lal I.L.R. 12 All. 440, was relied upon. That case is not in point. In that case in the life-time of the judgment-debtor a valid attachment had been made, which continued after his death, and an order for sale had been made, and nothing remained but to carry into effect the order for sale. The decree-holder has only himself or his advisers to thank for the position in which he finds himself. There is quite sufficient irregularity in the execution of decrees in this country without our introducing the novel system that a decree can be executed against the estate of a deceased judgment-debtor without any notice to his representative and without anyone to protect the property being brought upon the record.

3. We dismiss this appeal with costs.

1. This appeal arises in the execution of a decree. The decree was passed on the 25th of January 1878. On the 9th of January 1879,the first application was made for execution. On the 19th of March 1880, the second application was made. On the 8th of June 1880, the third application was made. After the last-mentioned application had been made, one Shoo Dial filed an objection to the execution of the decree against this property. His objection was filed under Section 278 of the Code of Civil Procedure. The objection was allowed. The allowance of that objection had the effect of determining any attachment or any order for sale which had previously been made. The decree-holder brought his suit under Section 283 of the Code to have his right declared to execute his decree against this property. In that suit he ultimately succeeded, but the decree establishing his right did not reinstate the attachment or any order for sale, if any, which may have been made. The decree-holder having by his suit established his right to execute his decree against this property, it was for him to take the necessary steps to put his decree in execution. On the 2lst of August 1886, he filed an application for the execution of his decree. Before the 21st of August 1886, the judgment-debtor had died. The decree-holder appears to have assumed that he had a decree in rem which he could proceed to execute without bringing upon the record or giving notice to any representative of the deceased judgment-debtor. On the 4th of December 1887, he filed another application, still without anyone to represent the estate of the deceased judgment-debtor. On the 23rd of July 1889, he filed his sixth and last application. On the 21st of December 1888, he had obtained an order for attachment, there being at that time no respondent to his application representing the estate or the interest which had been in the deceased judgment-debtor.

2. It appears to us that this was a case to which Section 234 and Section 248 of the Code of Civil Procedure applied, and that the proceedings in execution after the death of the judgment-debtor made in the absence of and without notice to the representative of the judgment-debtor were ineffectual proceedings. The Subordinate Judge in the present case has held that the present application for execution is barred by limitation, and he has so held having come to the conclusion that the applications which were made when there was no representative of the deceased judgment-debtor on the record were ineffectual. On behalf of the decree-holder appellant the decision of the Full Bench in Sheo Prasad v. Hira Lal I.L.R. 12 All. 440, was relied upon. That case is not in point. In that case in the life-time of the judgment-debtor a valid attachment had been made, which continued after his death, and an order for sale had been made, and nothing remained but to carry into effect the order for sale. The decree-holder has only himself or his advisers to thank for the position in which he finds himself. There is quite sufficient irregularity in the execution of decrees in this country without our introducing the novel system that a decree can be executed against the estate of a deceased judgment-debtor without any notice to his representative and without anyone to protect the property being brought upon the record.

3. We dismiss this appeal with costs.


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