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Bhagwan DIn and anr. Vs. Paraga Kuar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All301
AppellantBhagwan DIn and anr.
RespondentParaga Kuar
Excerpt:
execution of decree - civil procedure code, section 230--meaning of 'granted.' - .....jai jodhan singh. he also left among his heirs a nephew named zalim singh, whose widow, named paraga kuar, is the appellant before us.2. now down to march 1877, various amounts had been paid on account of the decree, and on the 6th march of that year, an application for execution was made against manni kuar, the widow of the deceased hattu singh. the result of these proceedings was, that an arrangement was coma to on the 11th may 1877, for liquidation of the amount then due, and this arrangement was confirmed by the court on the 9th june 1877. the next application for execution, with which we have to do, was made on the 9th march 1881. at this time the decree was more than 12 years old. there was an office report made to the effect that manni kuar had died, and therefore notice was.....
Judgment:

Straight, Offg. C.J.

1. On the 26th August 1865, one Bhagwan Din, the respondent before us, obtained a decree against a person named Hattu Singh. It was an instalment decree for Rs. 3,214-14-2, payable by yearly instalments, commencing in the year 1866, and extending to the year 1882, in all a period of 16 years. In the year 1870 the judgment-debtor Hattu Singh died leaving behind him a widow named Manni Kuarand two daughters, one of whom had a son named Jai Jodhan Singh. He also left among his heirs a nephew named Zalim Singh, whose widow, named Paraga Kuar, is the appellant before us.

2. Now down to March 1877, various amounts had been paid on account of the decree, and on the 6th March of that year, an application for execution was made against Manni Kuar, the widow of the deceased Hattu Singh. The result of these proceedings was, that an arrangement was coma to on the 11th May 1877, for liquidation of the amount then due, and this arrangement was confirmed by the Court on the 9th June 1877. The next application for execution, with which we have to do, was made on the 9th March 1881. At this time the decree was more than 12 years old. There was an office report made to the effect that Manni Kuar had died, and therefore notice was issued to Jai Jodhan Singh and Paraga Kuar, widow of Zalim Singh above-named, surviving heirs of the judgment-debtor. On the 6th April 1881, it was notified to the Court that another arrangement had been effected under which a certain sum had been paid by Jai Jodhan Singh in satisfaction and discharge of the claim against him, and that the balance of Rs. 800 had been agreed to be paid by Paraga Kuar by yearly instalments. On the 5th March 1883, there was another application for execution against Paraga Kuar, which was the last preceding application for execution to that which we have to deal with, namely that of the 31st March 1884, and what is prayed by the decree-holder is, that the execution of the decree of 1865 should be allowed by attachment and sale of the property of Paraga Kuar.

3. That application has been granted by the lower Court, and Paraga Kuar prefers this appeal. The only real ground on which we are asked to disturb its order is, that the original decree having been more than 12 years old at the date of the two last applications for execution, it is barred by limitation. Looking at the provisions of Section 230 of the Civil Procedure Code, it would appear that, after a decree is 12 years old, there is a prohibition against its being executed more than once, that is, an application for execution should not be granted if a previous application had been alksved under the provisions of that section.

4. Now the test to apply to this case is, to see whether the last of those applications preceding the application the granting of which is the subject of appeal, was granted, because, if granted, the prohibition referred to in the section applies. The last preceding application was that of the 5th March 1883, and all that seems to have been done was, that application was made, notice to appear was issued, and after this notice a petition was put in intimating that some arrangement had been come to, and praying that execution might be postponed, whereupon the application was struck off. It appears to me impossible to say that the mere filing of a petition with the result that the application contained in it is subsequently struck off, is granting an application within the meaning of Section 230 of the Code; and looking to the provisions contained in Sections 245, 248 and 249, it also appears to me that there is a broad distinction between admitting an application for the purpose of issuing notice to the other side and of hearing the objections that may be urged, and a decision of the Court as provided in Section 249. In other words, it is one thing to ask for execution of a decree, and another to have such application granted. I therefore think the last preceding application here was not one that can be said to have been 'granted.' The same may be said as to the application of the 9th March 1881; nothing more was done as to that than as to the application of the 5th March 1883. Therefore that also is not within the prohibition contained in Section 230.

5. Under these circumstances the decree, though twelve years old and upwards, is not barred by Section 230 of the Civil Procedure Code, and therefore the plea of limitation fails on that ground.

6. It has been suggested that the Judge has not tried the question whether Paraga Kuar was a party to the compromise of 1881; but no such objection has been put forward by her in her grounds of appeal. Her plea was that the execution of the decree was barred by limitation, and, though this matter has been before this Court in another shape in appeal from the District Judge, and is again before us, no such allegation has ever been formally made on her part, nor has it been entered in the memorandum of appeal. Under these circumstances we should not be justified in interfering with the order of the lower Court or delaying the execution of the decree. The appeal is dismissed with costs.

Tyrrell, J.

7. I concur.


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