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Sheo Prasad and anr. Vs. Indar Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All179
AppellantSheo Prasad and anr.
Respondentindar Bahadur Singh and ors.
Excerpt:
execution of decree - limitation--act no. xv of 1877 (indian limitation act), schedule ii, article 179(4)--application to take some step in aid of execution--payment of process fees. - - it clearly therefore fell within the language of article 179(4) of the second schedule of the limitation act......7th september 1904 the suit was dismissed, but on appeal it was decreed by the district judge. the decree-holders preferred a second appeal to this court, which has been decided in their favour. whilst the case was pending in this court the decree-holders, as a matter of precaution, applied for the arrest of the judgment-debtors. this application has been rejected by the court below on the ground that there had been no application to the court to take any step in aid of the execution within three years previously to the application for arrest.2. the decree-holders come here in appeal. the learned counsel who appears for them relies on the payment of process fees made on his application to attach the house within three years of the present application to arrest. in support of this case he.....
Judgment:

Aikman and Karamat Husein, JJ.

1. This is a decree-holder's appeal in proceedings arising out of the execution of the decree. An application was presented within time for attachment of certain house property. An objection was filed to this attachment, which was rejected on the 18th December 1903 On the 12th of January 1904 the objectors instituted a and regular suit. In consequence of this suit the Court postponed the sale of the property and struck off the application. On the 7th September 1904 the suit was dismissed, but on appeal it was decreed by the District Judge. The decree-holders preferred a second appeal to this Court, which has been decided in their favour. Whilst the case was pending in this Court the decree-holders, as a matter of precaution, applied for the arrest of the judgment-debtors. This application has been rejected by the Court below on the ground that there had been no application to the Court to take any step in aid of the execution within three years previously to the application for arrest.

2. The decree-holders come here in appeal. The learned Counsel who appears for them relies on the payment of process fees made on his application to attach the house within three years of the present application to arrest. In support of this case he refers to a decision of the Madras High Court-Vijiaraghavalu Naidu v. Srinivasalu Naidu (1905) I.L.R. 28 Mad. 399. That case is in our judgment distinguishable from the present, as it appears that the document along with which the process fees were deposited did ask the Court to issue a sale proclamation: it clearly therefore fell within the language of Article 179(4) of the second schedule of the Limitation Act. In this case when the process fees were paid no application was made to the Court to do anything. The decision of our brother Banerji in Thakur Ram v. Katwaru Ram (1900) I.L.R. 22 All. 358 supports the view taken by the Court below, and with that decision we are in accord.

3. At the same time we are of opinion that the order now under appeal has not the effect of deciding that the decree has become time-barred. As said above, the application to attach and sell the house property was made within time. The granting of that application was suspended, not from any fault of the decree holders, but owing to the institution of the suit referred to above.

4. That suit has been finally derided in the decree-holders' favour by this Court on the 5th January 1907, and the dismissal of the application for arrest made while the application for attachment and sale was in suspense will not, in our opinion, have the effect of preventing the decree-holders from exercising their right, now that the suit instituted by the objectors has been decided in their favour, to ask the Court to go on with the application for attachment and sale, which must be deemed to have been in suspense pending the decision of the suit. The order under appeal, however, cannot successfully be assailed, and we dismiss this appeal. Under the circumstances we make no order as to costs.


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