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Jadu Nath and ors. Vs. Jawahir Singh - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All439
AppellantJadu Nath and ors.
RespondentJawahir Singh
Excerpt:
execution of decree - order for sale--application for execution struck off--application for restoration--finality of order. - .....res judicata, because the same issue was decided by the court, and between the same parties. the decree was passed be this court in appeal, and we are bound to consider that it was correctly passed, and that the order for sale passed upon it was properly made, and that the sale ought to have taken place. the appeal was decided in april 1881, and then the matter seems to have slept. the munsif's file was apparently over-laden, and the case was transferred from his file to that of the district judge, who does not appear to have taken any action in the matter, it he proper application for the decree-holder to have made in september 1882, was that the case might be restored by the munsif. the only question we have now to consider is, whether the present application can be so dealt with as.....
Judgment:

W. Comer Petheram, C.J.

1. I think the decree-holder is entitled to execution of his decree, a 3d that he can get it under the application which was made on the 1st October 1879. It is possible that a difficulty may then arise as to whether he is entitled to make a second application for execution within the three years allowed to him under Section 230 of the Civil Procedure Code, the first application having been made in 1878. But that point does not really arise nor, because to my mind the question is, whether execution can now be had under the proceedings of the 1st October 1879. The decision then arrived a: appears to me to make the matter res judicata, because the same issue was decided by the Court, and between the same parties. The decree was passed be this Court in appeal, and we are bound to consider that it was correctly passed, and that the order for sale passed upon it was properly made, and that the sale ought to have taken place. The appeal was decided in April 1881, and then the matter seems to have slept. The Munsif's file was apparently over-laden, and the case was transferred from his file to that of the District Judge, who does not appear to have taken any action in the matter, it he proper application for the decree-holder to have made in September 1882, was that the case might be restored by the Munsif. The only question we have now to consider is, whether the present application can be so dealt with as to meet this state of things.

2. I think that it can, because the prayer contained in the application is, 'that the suit may be restored to its number, and that the judgment-debt may be caused to be realized by attachment and sale of the debtor's property specified in the former schedule of property.' Now the 'number' here referred to is the number of the proceedings of October 1879, and the 'schedule of property' means the schedule of the property then ordered to be sold. Under the circumstances, I think that the appeal should be dismissed with costs, but that the under should be modified by making it an order to the Munsif to restore tie proceedings of the 1st October 1879, to his file, and to proceed to levy the debt under that order.

Straight, J.

3. I am of the same opinion.


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