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Fazal Husen Vs. Raj Bahadur - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All124a
AppellantFazal Husen
RespondentRaj Bahadur
Excerpt:
act no. xv of 1877 (indian limitation act), schedule ii, article 179 - execution of decree--limitation--starting point of limitation where appeal has abated. - - appeals by him and against him were instituted, and by reason of his death and the failure to put upon the record his representatives the appeals abated......and the failure to put upon the record his representatives the appeals abated. the claim of the decree-holder is that he is in time in taking proceedings. the decree-holder claims to execute within three years from the date of that order of abatement. the decree of the munsif is of a date beyond the three years' period. it appears to us that the appellant has no ground for that contention. according to article 179, the starting point for limitation is from the date of the decree or order of the civil court. it is the decree of the munsif which be now seeks to execute: he contends, however, that clause 2 of column 3 of article 179 applies; the words are 'where there has been an appeal, the date of the final order or decree of the appellate court.' it is manifest to us that an order by.....
Judgment:

Blair and Aikman, JJ.

1. The appellant is a decree-holder seeking to execute his decree against the interest of one Har Dyal. Har Dyal was one of three persons against whom a Munsif's judgment and decree were passed. Appeals by him and against him were instituted, and by reason of his death and the failure to put upon the record his representatives the appeals abated. The claim of the decree-holder is that he is in time in taking proceedings. The decree-holder claims to execute within three years from the date of that order of abatement. The decree of the Munsif is of a date beyond the three years' period. It appears to us that the appellant has no ground for that contention. According to Article 179, the starting point for limitation is from the date of the decree or order of the Civil Court. It is the decree of the Munsif which be now seeks to execute: he contends, however, that Clause 2 of column 3 of Article 179 applies; the words are 'where there has been an appeal, the date of the final order or decree of the Appellate Court.' It is manifest to us that an order by which an appeal abates is not the final decree or order contemplated by that clause; it cannot be' executed, and the only extant decree after the making of such an order is the original decree of the Munsif. The application is admittedly presented more than three years after the date of the Munsif's decree. This appeal is dismissed with costs.


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