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Kallu and anr. Vs. Mahammad Abdul Ghani and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All564
AppellantKallu and anr.
RespondentMahammad Abdul Ghani and anr.
Excerpt:
execution of decree - act xv of 1877 (limitation act), schedule ii, no. 179--application or 'step in aid of execution'--application by pleader for execution after decree-holder's death. - .....in whose favour it had been passed. no execution appears to have been taken out by the original decree-holder, who died on the 11th february 1883. two days after his death, on the 13th fehruary, an application was made on his behalf by his pleader for execution, this being the first application of the kind. the court executing the decree admitted the application as being within time, but the judgment-debtor appealed from the order passed on the application to the district judge, who passed an order that 'the heirs might be allowed to carry on the execution;' and he seems to have directed the heirs to make an application within two days from the date of his decision. it is unnecessary to consider whether or not such a direction was legal; but, as a matter of fact, no application for.....
Judgment:

Mahmood, J.

1. We are of opinion that this appeal should be dismissed. The facts necessary for consideration in connection with the point of law seem to be as follows: A decree, dated the 13th February 1880, was held by one Ram Lal, in whose favour it had been passed. No execution appears to have been taken out by the original decree-holder, who died on the 11th February 1883. Two days after his death, on the 13th Fehruary, an application was made on his behalf by his pleader for execution, this being the first application of the kind. The Court executing the decree admitted the application as being within time, but the judgment-debtor appealed from the order passed on the application to the District Judge, who passed an order that 'the heirs might be allowed to carry on the execution;' and he seems to have directed the heirs to make an application within two days from the date of his decision. It is unnecessary to consider whether or not such a direction was legal; but, as a matter of fact, no application for execution was made by the present appellants, the heirs of the decree-holder, until the 30th August 1883, and it is in connection with the application then made that the present appeal has been preferred.

2. The Court of First Instance, regarding the judgment of the District Judge as conclusive as to the validity of the former application, entertained the present as within time. There was however no such adjudication as would be covered by the Privy Council ruling in the case of Ram Kirpal v. Rup Kuari I.L.R. 6 All. 269 : L.R. 11 Ind. Ap. 37 and therefore the District Judge on appeal held that execution of the decree was barred. The appeal has now come before us, and the whole matter depends on the question whether the application for execution of the 13th February 1883, was such an application or step in aid of execution of decree as would prevent limitation from running out in regard to this application. Now it is clear, and it has been admitted, that the decree-holder had died two days before the application was made. No valid application could be made by his pleaders, because the authority of a pleader ceases at the moment of his client's death, and therefore we hold that the period of limitation should be calculated from the date of the decree up to the date of the present application, and that being a period of more than three years, the application is barred, and the appeal must be dismissed with costs.

Brodhurst, J.

Concurred.


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