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Bhawani Prashad Vs. Syed Iftikhar Husain - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.759
AppellantBhawani Prashad
RespondentSyed Iftikhar Husain
Excerpt:
limitation act (ix of 1908), schedule i, article 182 - deposit of diet money or process fee--step-in-aid of execution--limitation. - - the words of the 4th clause in the 3rd column of article 179 schedule if of the limitation act of 1877 are re-produced word for word in clause 5 in the 3rd column of article l82 of the first schedule to the limitation act of 1908. it is clear, therefore, that according to the decisions of this court the mere payment into court of process fees or the like cannot be held to be an application to the court to take a step-in-aid of execution within the meaning of article 182 of the present limitation act......was presented on july 26, 1906, i.e., more than 3 years before the present application. but the decree-holder contends that the present application is within time inasmuch as it was presented within three years of the deposit made by him of six annas on account of diet money for the judgment-debtor for whose arrest an order had been passed on the application of july 26, 1906. it appears that on september 3, 1906, a sum of 0-6-0 was paid into court by means of the usual form of tender. the 'tender' is not signed by any one but the money was presumably paid into court on behalf of the decree-holder. the decree-holder contends that this 'tender' amounts to an application to the court to take some step-in-aid of execution of the decree. in the case of thakur ram v. katwaru ram 22 a. 358,.....
Judgment:

1. This appeal arises out of an application for execution of a decree passed on August 7, 1902. The present application was dated August 22, 1909. The last previous application was presented on July 26, 1906, i.e., more than 3 years before the present application. But the decree-holder contends that the present application is within time inasmuch as it was presented within three years of the deposit made by him of six annas on account of diet money for the judgment-debtor for whose arrest an order had been passed on the application of July 26, 1906. It appears that on September 3, 1906, a sum of 0-6-0 was paid into Court by means of the usual form of tender. The 'tender' is not signed by any one but the money was presumably paid into Court on behalf of the decree-holder. The decree-holder contends that this 'tender' amounts to an application to the Court to take some step-in-aid of execution of the decree. In the case of Thakur Ram v. Katwaru Ram 22 A. 358, it was held that the mere payment of the process fee for the issue of notice for the purpose of an enquiry to be held under Section 287 of the Code of Civil Procedure of 1882, or the payment of costs for the issue of a proclamation of sale unaccompanied by an application does not operate to give a fresh starting point for limitation within the meaning of Article 179(4) of the second Schedule to the Limitation Act, 1877. In Sheo Prasad v. Inder Bahadur Singh 30 A. 179 : A.W.N. (1908) 74 : 5 A.L.J. 258, that decision was cited with approval, and it was held that the mere payment of process fees on an application for execution, unaccompanied by an application asking the Court to take some specific action, does not have the effect of giving a fresh starting point of limitation within the meaning of the same article. The words of the 4th clause in the 3rd column of Article 179 Schedule If of the Limitation Act of 1877 are re-produced word for word in Clause 5 in the 3rd column of article l82 of the first Schedule to the Limitation Act of 1908. It is clear, therefore, that according to the decisions of this Court the mere payment into Court of process fees or the like cannot be held to be an application to the Court to take a step-in-aid of execution within the meaning of Article 182 of the present Limitation Act. But it is contended that in the peculiar circumstances of the present case it should be held that there was such an application to the Court. The learned Advocate for the decree-holder relies on the words Khurakh-i-muddaihili in the 3rd column of the tender. It appears to me impossible to hold that these words are equivalent to an application to the Court to arrest the judgment debtor. The order for the arrest of the judgment-debtor had already been passed, and even if it be assumed that the warrant would not have been executed until the decree-holder had paid a certain amount on account of the diet-money of the judgment-debtor, I do not think that this was an application to the Court to take a step-in-aid of execution. It was merely an application to the office to receive the money. As Sir Lawrence Jenkins remarked in Maluk Chand Ratan Chand v. Bechar Natha 25 B. 639 : 3 Bom. L.R. 275, 'payment of the money was no more than the performance of a condition essential to the order for execution.' There is also the further difficulty that the tender is not signed by any one. But I lay no stress upon this, for it appears to me that even if it had been signed, there is nothing in the tender which I can treat as an application to the Court to take a step-in-aid of execution. Agreeing with the Court below, I dismiss this appeal with costs including in this Court fees on the higher scale.


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