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Sheikh Ali HusaIn Objector Vs. Sheikh Rafi-ul-lah and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.707
AppellantSheikh Ali HusaIn Objector
RespondentSheikh Rafi-ul-lah and anr.
Excerpt:
.....decree--obstruction placed in the way of execution--time to run from the removal of the obstruction--revival of previous application, for execution--limitation. - - the case is exactly like that of qamar-ud-din ahmad v. 397, decided by the privy council, except that the last application in that case was distinctly for the revival of the previous application whereas in the present case the application for execution of 16th june 1909 is not in form an application for revival of the previous application although it asks for attachment and sale of the same property. 345, where the facts were very like those of the present case, the last application for execution was not in form an application for the revival of a previous application, yet it was treated by the high court as an application..........the 2nd of may, 1903. the first application for execution was made on the 31st of march 1905. the present application which was made as already stated on june 16, 1909, appears at first sight to be beyond time. but the first application for execution was dismissed on the objection of the judgment-debtor that the property sought to be attached was not liable to attachment. that order was set aside by the high court on 11th march 1907, when it was held that the property was liable to attachment. the present application was made within 3 years from that date. the decree-holders contend that they are entitled to 3 years under article 178, schedule ii, of the limitation act of 1877 from the date of the high court's order. the case is exactly like that of qamar-ud-din ahmad v. jawahir lal 27.....
Judgment:

Chamier, J.

1. This is an appeal by a judgment-debtor. The only question for decision is whether or not the respondents' application for execution, which was made on the 16th of June 1909, is within limitation. The decree was passed on the 2nd of May, 1903. The first application for execution was made on the 31st of March 1905. The present application which was made as already stated on June 16, 1909, appears at first sight to be beyond time. But the first application for execution was dismissed on the objection of the judgment-debtor that the property sought to be attached was not liable to attachment. That order was set aside by the High Court on 11th March 1907, when it was held that the property was liable to attachment. The present application was made within 3 years from that date. The decree-holders contend that they are entitled to 3 years under Article 178, Schedule II, of the Limitation Act of 1877 from the date of the High Court's order. The case is exactly like that of Qamar-ud-din Ahmad v. Jawahir Lal 27 A. 334 : 7 Bom. L.R. 433 : 1 C.L.J. 381 : 15 M.L.J. 258 : 9 C.W.N. 601 : 2 A.L.J. 397, decided by the Privy Council, except that the last application in that case was distinctly for the revival of the previous application whereas in the present case the application for execution of 16th June 1909 is not in form an application for revival of the previous application although it asks for attachment and sale of the same property. But, in my opinion, this is not a sufficient ground for distinguishing the two cases. In Narayan Govind Manik v. Sonu Sadashiv 24 B. 345, where the facts were very like those of the present case, the last application for execution was not in form an application for the revival of a previous application, yet it was treated by the High Court as an application for the revival of the previous application, and it seems that the Court was of opinion that the decrees-holder was entitled to 3 years, presumably under Article 178, from the time when it became possible for the decree-holder to apply for execution. Similarly in the case of Raghunath Sahai Singh v. Lalji Singh 23 C. 397, an application for execution made after the removal of an obstruction, which had continued for a considerable time, was treated as an application for the revival of a previous application although in form it was not so. So also in Suppa Reddiar v. Avudai Animal 28 M. 50 (F.B.), an application for execution presented after the removal of an obstruction and within 3 years after the removal of that obstruction was treated as an application to revive a previous application and was held to be within time under Article 178, although it does not seem to have been in form an application for the revival of any previous application. On these authorities, I must hold that the respondent's application for execution was within time. The appeal, therefore, fails and is dismissed with costs including fees on the higher scale.


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