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Ram Sarup and anr. Vs. Ghaurani and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All453
AppellantRam Sarup and anr.
RespondentGhaurani and anr.
Excerpt:
act no. iv of 1682 (transfer of property act), section 90 - application for a decree under section 90--limitation-act no. xv of 1877 (indian limitation act), schedule ii article 178. - .....of the original decree. then so much being granted the question arises what is the limitation article applicable to such an application? the appellants contend that the article applicable is 179, while for the respondents is is argued that article 178 applies. now article 179 is an article which provides a period of limitation for an application 'for the execution of a decree or order of a civil court.' it seems to us that the application we are considering, namely one to obtain a decree under section 90, cannot by any straining of language be considered to be an application 'for the execution of a decree' under section 88. neither in substance nor in form does such an application ask for execution of that decree. what it does ask is that, certain events being ascertained to have.....
Judgment:

Blair and Burkitt, JJ.

1. The only question which arises in this case is, whether an application made by the appellants to obtain the decree provided for by Section 90 of the Transfer of Property Act is or is not barred by limitation. The lower Court has found that it is so barred. The first question which we have to consider is whether an application of this nature is one made in the course of proceedings in execution of a decreee passed under Section 88 of that Act. Upon this point we are concluded by the authority of two cases--Durga Dai v. Bhagwat Prasad (1891) I.L.R. All. 356, and Musaheb Zaman Khan v. Inayatullh (1892) I.L.R. 513, at p. a proceeding in the execution of the original decree. Then so much being granted the question arises what is the limitation article applicable to such an application? The appellants contend that the article applicable is 179, while for the respondents is is argued that Article 178 applies. Now Article 179 is an article which provides a period of limitation for an application 'for the execution of a decree or order of a Civil Court.' It seems to us that the application we are considering, namely one to obtain a decree under Section 90, cannot by any straining of language be considered to be an application 'for the execution of a decree' under Section 88. Neither in substance nor in form does such an application ask for execution of that decree. What it does ask is that, certain events being ascertained to have occurred, a subsidiary decree for money may be passed, in execution of which the amount still remaining due on the principal decree under Section 88 may be recovered. But as we have before remarked, such an application, though undoubtedly an application in an execution proceeding, is not an application 'for the execution' of the principal decree. We hold therefore that this application is not governed by the limitation rule to be found in Article 179. That being so, the only other article of the Indian Limitation Act applicable is Article 178, and there can be no doubt in this case that, that article being applicable, the present application is time-barred. We therefore dismiss this appeal with costs.


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