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Moti Lal Vs. Makund Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All477
AppellantMoti Lal
RespondentMakund Singh and ors.
Excerpt:
.....execution of his decree. - - the filing of the receipt is a mere matter of procedure, no money passes or is intended to pass, unless the purchase-money is in excess of the judgment-debt, and the execution of his decree cannot be said to be satisfied until in the one case he has received the purchase-money paid into court, and in the other case until he be put into possession of the property of his judgment-debtor which he has purchased and which represents money, which, if a third person purchased, would have been paid into court, and upon the decree-holder's application would have been paid out to him......court that an application by a decree-holder to obtain payment to him out of court of purchase money paid for the property of his judgment-debtor at a sale held under the decree-holder's decree was 'taking a step in aid of execution' within the meaning of article 179, paragraph 4, of the limitation act. that decision was approved of by the full bench of this court in sujan singh v. hira singh i.l.r. 12 all. 399. a proceeding in execution cannot be said to be completed (at least so far as a decree-holder is concerned) in a case of sale until he has obtained the proceeds and benefit of the sale held in execution of his decree. consequently it appears to us that an application to be paid out of court the proceeds of such sale must be considered as the taking of a step in aid of the.....
Judgment:

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

1. The question before us is as to whether execution of a decree for money in this case was barred by limitation on the 19th of January 1895, when an application, out of which this appeal has arisen, was made.

2. The decree-holder, or rather his heir, is appellant here. The decree-holder obtained his decree for money, and, under an application of the 9th of April 1890, he, on the 20th of November 1891, brought some property of the judgment-debtors (respondents here) to sale, and, having obtained leave to purchase, he purchased it himself. On the 21st of January 1892, the sale was confirmed. On the 9th of February 1892, he obtained a certificate of sale in respect of the sale to which we have referred. On the 29th of February 1892, the decree-holder applied to the Court to be put in possession of the property which he had purchased. On the 21st of March 1892, the decree-holder was put in possession by the Court. On the 6th of April 1892, the decree-bolder died and was succeeded by his minor son, appellant here, and on the 19th of January 1895, the son filed the present application for execution of the decree. The Subordinate Judge of Aligarh dismissed the application, holding that the execution of the decree was barred by limitation.

3. In order to save limitation the appellant has relied upon the application for a certificate of sale of the 9th of February 1892, and the application to be put into possession of the 29th of February 1892. If the making of either of these applications by the decree-holder was the taking of a step in aid of execution of the decree, the application of the 19th of January 1895, was within time.

4. Now it has Been held by this Court that an application by a decree-holder to obtain payment to him out of Court of purchase money paid for the property of his judgment-debtor at a sale held under the decree-holder's decree was 'taking a step in aid of execution' within the meaning of article 179, paragraph 4, of the Limitation Act. That decision was approved of by the Full Bench of this Court in Sujan Singh v. Hira Singh I.L.R. 12 All. 399. A proceeding in execution cannot be said to be completed (at least so far as a decree-holder is concerned) in a case of sale until he has obtained the proceeds and benefit of the sale held in execution of his decree. Consequently it appears to us that an application to be paid out of Court the proceeds of such sale must be considered as the taking of a step in aid of the execution of the decree.

5. Now, apart from procedure, which does not assist us in ascertaining or applying principles of law, is there any difference between the case of a decree-holder applying to the Court to be paid out of Court the proceeds of a sale held in execution of his decree for money, and the case of a decree-holder, where he has himself purchased--consequently where no money passes--applying to the Court to be put in possession of that which represents money, which, if a third person had purchased, would have been paid into Court.

6. Mr. Ram Prasad, for the judgment-debtor, has contended that, inasmuch as the decree-holder, when he purchases, files in Court a receipt for so much of his judgment-debt as represents his purchase-money, he, on filing that receipt must be treated as having received the purchase-money. The filing of the receipt is a mere matter of procedure, no money passes or is intended to pass, unless the purchase-money is in excess of the judgment-debt, and the execution of his decree cannot be said to be satisfied until in the one case he has received the purchase-money paid into Court, and in the other case until he be put into possession of the property of his judgment-debtor which he has purchased and which represents money, which, if a third person purchased, would have been paid into Court, and upon the decree-holder's application would have been paid out to him. We can see no difference between the two cases.

7. We hold that the application of the 19th January 1895, to execute this decree was within time, We allow this appeal with costs, and we direct the Court below to proceed with the execution of the decree.


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