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Todar Mal and ors. Vs. Phola Kunwar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All389
AppellantTodar Mal and ors.
RespondentPhola Kunwar
Excerpt:
act no. ix of 1908 (indian limitation act), schedule i, article 128 - execution of decree--limitation--step in aid of execution--application for transfer of decree--civil procedure code (1882), section 223. - - such an application is clearly an application to take a step in aid of execution......1906. on the 5th of september, 1908, the decree-holder applied to the court at bareilly, which had passed the decree, to transfer it for execution to the court at shahjahanpur. this application was made under section 223 of the code of civil procedure, 1882. the certificate asked for was granted, and thereupon an application for execution was made in the court at shahjahanpur on the 8th of february, 1910. it is this application which the appellants contend is time-barred. the court below has held against the appellants, and in our judgment its decision is right. the present application for execution would be within time if the application of the 5th of september, 1908, was one to take a step in aid of execution, within the meaning of article 182, schedule i, of the limitation act. no.....
Judgment:

Banerji and Ryves, JJ.

1. This appeal arises out of an application for the execution of a decree, and the question to be determined is whether the application is time-barred. A preliminary decree for sale was passed on the 1st of September, 1897, and it was made absolute on the 17th of November, 1900. The last application for execution, admittedly within time, was made on the 11th of May, 1906. On the 5th of September, 1908, the decree-holder applied to the court at Bareilly, which had passed the decree, to transfer it for execution to the court at Shahjahanpur. This application was made under Section 223 of the Code of Civil Procedure, 1882. The certificate asked for was granted, and thereupon an application for execution was made in the court at Shahjahanpur on the 8th of February, 1910. It is this application which the appellants contend is time-barred. The court below has held against the appellants, and in our judgment its decision is right. The present application for execution would be within time if the application of the 5th of September, 1908, was one to take a step in aid of execution, within the meaning of Article 182, Schedule I, of the Limitation Act. No application for execution could be made in a district outside the jurisdiction of the court which passed the decree unless that court made an order transferring the decree for execution. An application for transfer of the decree is, therefore, an essential and necessary step preliminary to the making of an application for execution in a court which is not the court which passed the decree. Such an application is clearly an application to take a step in aid of execution. This was so held by the Calcutta High Court in Chundra Nath Gossami v. Gurroo Prosunno Ghose (1895) I.L.R., 22 Calc., 375, and we agree with that ruling. We dismiss the appeal with costs.


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