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Jit Mal and ors. Vs. Jwala Prasad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All155
AppellantJit Mal and ors.
RespondentJwala Prasad
Excerpt:
.....in the last paragraph of the section just quoted, namely, that notwithstanding the lapse of twelve years, they were still entitled to execute their decree owing to the fact that previous applications for execution had been defeated by the judgment-debtor through fraud or force......that application was presented within twelve years from the date of the decree. the decree-holders come here in appeal. the history of the case set forth by the lower court in its finding of the 28th of september 1898, is a melancholy and forcible illustration of the truth of the saying that a successful suitor's troubles only begin when he has obtained his decree. the decree, as stated above, was passed in december 1885. on the 9th of january 1886, the unfortunate decree-holders began their attempts to recover the money which had been found due to them. from that time onwards they have made one attempt after another to have the decree executed, with the result that only an insignificant portion of the decretal amount has been realized, and that the sum still due under the.....
Judgment:

Blair and Aikman, JJ.

1. This is an appeal on behalf of certain decree-holders, who, on the 2nd of December 1885, got a money decree against the respondent, Jwala Prasad, for a sum of Rs. 8,228. The lower Court rejected the application filed on the 29th of November 1897, for the arrest of the judgment-debtor. That application was presented within twelve years from the date of the decree. The decree-holders come here in appeal. The history of the case set forth by the lower Court in its finding of the 28th of September 1898, is a melancholy and forcible illustration of the truth of the saying that a successful suitor's troubles only begin when he has obtained his decree. The decree, as stated above, was passed in December 1885. On the 9th of January 1886, the unfortunate decree-holders began their attempts to recover the money which had been found due to them. From that time onwards they have made one attempt after another to have the decree executed, with the result that only an insignificant portion of the decretal amount has been realized, and that the sum still due under the decree, with interest thereon, amounts to upwards of Rs. 10,000. The judgment-debtor has by one device or another succeeded in evading up to now payment of the money which was found due from him. That the satisfaction of the judgment-debt was delayed by the property of the judgment-debtor, we cannot believe. The history of what has taken place during the past twelve years is sufficient to show that it is not from want of means that he has not paid his debts. He has blocked the execution by transfers made in the names of his sons and son-in-law. Property, which was on the point of being attached, was removed. When warrants of arrest were issued, the ministerial officers of the Court sent to execute the warrants seem to have been seized with sudden blindness and incapacity to discover the whereabouts of this judgment-debtor. On one occasion only is he said to have been found, and then, according to the report, he managed, with the help of his friends, to make his escape from the custody of the peons. On the 4th of August 1897, the decree-holders applied for and obtained an order of the Court for the judgment-debtor's arrest. As usual the peon reported that the judgment-debtor had concealed himself; and thereupon the Court lost no time in striking off the case. What impresses us in these proceedings is the singular want of sympathy exhibited by the Court towards the decree-holders. We should have thought that in a case like this the lower Court would have taken some pains to see that its order was carried out, and not have hastened to trike off the case on the mere report of its peons that the judgment-debtor had concealed himself. The last application was made on the 29th of November 1897. In this also the decree-holders asked that the judgment-debtor should be arrested. The judgment-debtor filed an objection. That objection was allowed by the Court on grounds which appear to us, looking to the past history of the case, to be quite inadeqate, and the ease was struck off on the 20th February 1858. When the appeal was last before us, a difficulty presented itself to us, arising out of the wording of Section 230 of the Code of Civil Procedure, namely, that even if we were of opinion that the Court was wrong in striking off the application of the 29th of November 1897, it would be impossible to grant it now, looking to the fact that upwards of twelve years has elapsed since the date of the decree sought to be enforced and that previous applications for execution have been granted. The learned vakil for the appellants contended, with reference to this difficulty, that his clients were entitled to the benefit of the proviso contained in the last paragraph of the Section just quoted, namely, that notwithstanding the lapse of twelve years, they were still entitled to execute their decree owing to the fact that previous applications for execution had been defeated by the judgment-debtor through fraud or force. In order to enable us to dispose of this plea, we asked the lower Court for a finding on the issue as to whether execution had been prevented by the fraud or force of the judgment-debtor. The return to this order of reference is, that no fraud or force on the judgment-debtor's part preventing the execution of the decree, has been established. To this finding objections have been taken. In the view, however, which we now take of the case, we deem it unnecessary to express any opinion whether or not the finding is warranted by the evidence. We have the fact that in August 1897, the Court issued an order that the judgment-debtor should be arrested, and that order has not yet been carried out. With reference to this we may quote the following passage from a recent judgment of this Court in the case of Anwar Ali Khan v. Phul Chand Weekly Notes 1898 p. 137: 'The mere fact that a warrant issued and came back unexecuted is not, in our opinion, sufficient evidence of the proceeding for execution in pursuance of which it issued being exhausted and thereby determined.' With this view we are in entire accord. The learned vakil for the respondent argues that the application of the 29th of November 1897, is in terms a fresh application under Section 235 of the Code of Civil Procedure. We do not think that this is material. In our judgment that application is merely ancillary to the previous application. To yield to the contention of the learned vakil for the respondent, we should have to hold that the order passed on the application of August 1897, is exhausted by the return of the warrant, stating that the peons had been unable to find the judgment-debtor. That is a position which, as stated above, cannot, in our opinion, be maintained. For the above reasons we allow the appeal with costs, and, setting aside the order of the lower Court, we direct the execution to proceed. We must, in conclusion, express a hope that the Judge of the lower Court will devote his personal and particular attention to the execution of this decree, and will see that trustworthy men are sent to carry into effect the order for arrest.


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