Skip to content


Desraj Singh and ors. Vs. Karam Khan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All71
AppellantDesraj Singh and ors.
RespondentKaram Khan
Excerpt:
execution of decree - act no. xv of 1877 (indian limitation act), schedule ii, article 178--limitation. - .....the civil court transferred the proceedings to the collector under section 320 of the code of civil procedure. the wife of the judgment-debtor filed an objection under section 278 of the code of civil procedure claiming the property as hers. on the 17bh of january 1888 her objection was allowed under section 280 of the code, and the attachment was removed. thereupon the decree-holders brought a suit in accordance with section 283 of the code against the successful objector, and on the 5th of june 1888 obtained a decree declaring that the property was liable to be sold under the decree and order for sale of the decree-holders. from that decree the successful objector appealed; her appeal was dismissed by the district judge on the 3rd of august 1888, and her appeal from the decree of.....
Judgment:

John Edge, Kt., C.J. and Blennerhassett, J.

1. A decree for sale upon a mortgage bond was obtained on the 26th of March 1885. On the 6th January 1887 an application for an order for sale was made, and that application was allowed. Apparently the Civil Court transferred the proceedings to the Collector under Section 320 of the Code of Civil Procedure. The wife of the judgment-debtor filed an objection under Section 278 of the Code of Civil Procedure claiming the property as hers. On the 17bh of January 1888 her objection was allowed under Section 280 of the Code, and the attachment was removed. Thereupon the decree-holders brought a suit in accordance with Section 283 of the Code against the successful objector, and on the 5th of June 1888 obtained a decree declaring that the property was liable to be sold under the decree and order for sale of the decree-holders. From that decree the successful objector appealed; her appeal was dismissed by the District Judge on the 3rd of August 1888, and her appeal from the decree of the District Judge to the High Court was dismissed on the 28th of May 1892. On the 27th of April, 1892, the decree holders applied for the execution of their decree of the 26th of March 1885. Their application was dismissed on the ground that it was time-barred. They then appealed to the Court of the District Judge and their appeal was dismissed. They have brought this appeal.

2. The appellants have relied upon Basant Lal v. Batul Bibi I.L.R. 6 All. 23, upon Chintaman Damodar Agashe v. Balshastri I.L.R. 16 Bom. 294, and the Full Bench ruling of this Court in Paras Ram v. Gardner I.L.R. 1 All. 355.

3. On the other side the respondent has relied upon an unreported judgment of this Court in F.A. No. 91 of 1891, decided on the 13th of May 1893.

4. It appears to us that the first two cases relied upon on behalf of the appellants are not in point. Apparently in the case in I.L.R. 6 All. 23, the execution proceedings had been stayed under an order passed under Section 492 of the Code of Civil Procedure. The Full Bench case, whether the Full Bench rightly or wrongly decided the case, appears to us to be in favour of the respondent. It shows that the decree-holders had a right to apply for execution or to proceed with their application immediately on the passing of the decree of the 5th of June 1888 declaring that the property was liable to be sold. In our view the allowance of the objection and the passing of the order on the objection under Section 280 of the Code of Civil Procedure determined that application, and the making of the order under Section 283 would have finally determined the right to bring the property to sale, if the suit against the successful objector had not been brought within the year and decided in favour of the holders of the decree for sale. In our opinion Article 178 of the second schedule of the Indian Limitation Act, 1877, applies, and, more than three years having elapsed after the 5th of June 1888 before the present application was made, the application was time-barred. We dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //