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Girdhar Das and ors. Vs. Har Shankar Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All383
AppellantGirdhar Das and ors.
RespondentHar Shankar Prasad
Excerpt:
execution of decree - limitation--civil procedure code, section 326--execution as to immoveable property of judgment-debtor stayed by reason of the property being in charge of the collector. - - we set aside the decree of the lower court with costs, and we direct that court to issue a certificate of non-satisfaction if the decree has not been satisfied......of non-satisfaction of a decree which prayed that the decree be sent to the court of the judge of ghazipur for execution. the admitted facts are these. the decree was passed in 1874, and several applications for execution were made respecting it down to october 1879. in october 1879, by an order passed under section 326 of the code of civil procedure, the collector of ghazipur was authorised to provide for the satis; faction of decrees due and outstanding against the judgment-debtor, one babu har shankar prasad. under the provisions of section 326 the collector is armed with all the powers given by sections 320 to 3250, both inclusive, and all the provisions of those sections apply in such a case. the appellants here applied to the collector to have satisfaction of their decree, but the.....
Judgment:

Burkitt and Dillon, JJ.

1. This is an appeal against an order dismissing an application for a certificate of non-satisfaction of a decree which prayed that the decree be sent to the Court of the Judge of Ghazipur for execution. The admitted facts are these. The decree was passed in 1874, and several applications for execution were made respecting it down to October 1879. In October 1879, by an order passed under Section 326 of the Code of Civil Procedure, the Collector of Ghazipur was authorised to provide for the satis; faction of decrees due and outstanding against the judgment-debtor, one Babu Har Shankar Prasad. Under the provisions of Section 326 the Collector is armed with all the powers given by Sections 320 to 3250, both inclusive, and all the provisions of those sections apply in such a case. The appellants here applied to the Collector to have satisfaction of their decree, but the request was refused, as will be seen from the case of Girdhar Das v. The Collector of Ghazipur Weekly Notes 1896 p. 69. It is quite unnecessary here to discuss the reasons why the appellants' application for satisfaction of their decree was refused by the Collector. Suffice it to say that it was refused. The appellants appear to have made some subsequent applications in 1880 and 1886, the results of which we do riot know. The present application was made in July 1896, that is, not long after the Collector had completed the duties imposed on him by Sections 822 to 326. It was urged in the Court below that the application was time-barred, and the learned Subordinate Judge has affirmed that contention. In our opinion the decision appealed against is not correct. We have no doubt that under the last Clause of the first paragraph of Section 325A no Court could have issued any process of execution on the appellants' decree against any immoveable property in the district of Ghazipur belonging to the judgment-debtor as long as it was in the hands of the Collector. It may be that execution might have issued against the person or moveable property of the judgment-debtor, but with that we have no concern now. Turning now to the last paragraph of Section 325A we find that, so long as the Collector is able to exercise any of the powers or duties imposed on him by Sections 320 to 325C, which in this case was the period from October 1879 to March 1896, the period during which he exercised such powers shall be excluded from the period of limitation applicable to the execution of any decree affected by the provisions of Section 325A in respect of any remedy of which the decree-holders have thereby, that is under this section, been temporarily deprived. Now we have no doubt that the decree in question here was affected by the provisions of Section 325A, inasmuch as the last Clause of the first paragraph of Section 325A prevented a Civil Court in execution of a decree for money from issuing any process against the judgment-debtor's immoveable property in the hands of the Collector. The decree in this case is a decree for money. It follows therefore that the decree-holders were thereby, that is by the last Clause of the first paragraph of Section 325A, temporarily deprived of remedy against the immoveable property of their judgment-debtor in the district of Ghazipur. We think therefore that in respect of the property as to which they were temporarily deprived of their remedy, the decree-holders are now entitled to execution. But we desire to make it clear that the execution can be in respect only of the property referred to in the last Clause of Section 325A, that is to say, the property as to which their remedy for execution was temporarily withheld. We allow this appeal. We set aside the decree of the lower Court with costs, and we direct that Court to issue a certificate of non-satisfaction if the decree has not been satisfied. The appellants will have their costs in this Court.


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