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Jaideo Prasad and ors. Vs. Ghazi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All646
AppellantJaideo Prasad and ors.
RespondentGhazi
Excerpt:
- - the payment of this process-fee must clearly be associated with the application for execution dated the 3rd january 1921. the two things cannot be detached and treated as separate transactions......lower appellate court is correct.2. the question was a question of limitation. it seems that the decree-holder obtained a decree for possession of certain lands and also a decree for costs. on the 3rd of january 1921 he sought out execution of this decree by making an application (1) for delivery of possession and (2) for attachment of certain property for the realization of his costs. on the 18th of january 1921 the decree-holder got delivery of possession by execution of a dakhalnama. on the 22nd january 1921 he was ordered to pay into court the necessary process-fees for attachment and on that date he paid in a sum of rs. 3-12.3. it was reported after this that no property of the judgment-debtor was avail-able for attachment and so the application was infructuous. on the 16th.....
Judgment:

Lindsay, J.

1. On the whole, after hearing the learned Counsel in this case, I have come to the conclusion that the decision of the lower appellate Court is correct.

2. The question was a question of limitation. It seems that the decree-holder obtained a decree for possession of certain lands and also a decree for costs. On the 3rd of January 1921 he sought out execution of this decree by making an application (1) for delivery of possession and (2) for attachment of certain property for the realization of his costs. On the 18th of January 1921 the decree-holder got delivery of possession by execution of a dakhalnama. On the 22nd January 1921 he was ordered to pay into Court the necessary process-fees for attachment and on that date he paid in a sum of Rs. 3-12.

3. It was reported after this that no property of the judgment-debtor was avail-able for attachment and so the application was infructuous. On the 16th January 1924 the decree-holder again applied for attachment of property in order to satisfy his decree for costs and ho was met with the plea of limitation.

4. The last application for execution had been made undoubtedly on the 3rd of January 1921, and the application of the 16th January 1924 was therefore made more than three years afterwards. Prima facie, therefore, the application was barred.

5. It was contended, however, that the payment of the process-fee on the 22nd of January 1921 saved limitation. I do not think that argument can be maintained. The ruling in Thakur Ram v. Katwaru Ram (1900) 22 All. 358 seems to me to be clear authority against it, and there is also the other ruling of a Bench of this Court in Shoo Prasad v. Inder Bahadur Singh (1908) 30 All. 179.

6. It seems to me that the only previous application which was made for execution was the application of the 3rd of January 1921 and I cannot treat the payment of process-fee on the & 2nd of January 1921 as another and distinct application for execution or even as an application to take some step-in-aid of execution. The payment of this process-fee must clearly be associated with the application for execution dated the 3rd January 1921. The two things cannot be detached and treated as separate transactions.

7. For these reasons I think the judgment of the Court below must be maintained, and I dismiss this appeal under Order 41, Rule 11, C.P.C.


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