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Jamna Dat Vs. Bishnath Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.817
AppellantJamna Dat
RespondentBishnath Singh
Excerpt:
civil procedure code (act xiv of 1882), section 248 - judgment-debtor dead on the date of notice--legal representative of the deceased not impleaded--limitation act (xv of 1877), schedule ii, article 179, clause 5--provincial small--cause courts act (ix of 1887), section 25--question of limitation--high court can interfere--revision. - - 'we are satisfied that the legislature did not intend to give tinder the provisions of section 25 of act ix of 1887, practically an appeal on law and facts from a decision of the court of small causes whose decision is final, subject to the powers given by section 25; and, in our opinion, section 25 is not intended by the legislature to be applicable except in those cases to which section 622 of act xiv of 1882 was considered to be applicable before the..........was not valid. in support of this contention the learned vakil for the applicant relies on dhonkal singh v. phakkar singh 15 a. 84 in the head-note of which it is stated that the issuing of a notice under section 248 of the code of civil procedure gives a fresh starting point of limitation under article 179 clause 5 of schedule second of the indian limitation act (1877) whether such notice is issued on a valid or on invalid application for execution. the learned vakil for the opposite party meets this proposition by citing-a ruling reported in kanimal singh v. laraiti 2 a.l.j. 67. which lays down that a notice under section 248 of the code of civil procedure upon an application for execution of a time-barred decree could not have the effect of reviving the decree. he further contends.....
Judgment:

Karamat Husain, J.

1. The facts of this case are as follows:

On the 11th June 1903, a decree was passed. The first application for execution was made on the 4th of December 1906. A notice tinder Section 248 of the Code of Civil Procedure was issued on that application. The serving officer reported that the judgment-debtor was dead. The decree-holder got his application struck off for default. He made the second application on the 12th of December 1908. The learned Judge of the Court of Small Causes came to the conclusion that the second application was barred by time. In support of this proposition the learned Judge of the Court of Small Causes relied on the case of Madho Prasad v. Kesho Prasad 19 A. 337. The decree-holder has applied for the revision of the order of the Court of Small Causes on the ground that the period of limitation, under Clause 5 of article 179 of the second Schedule to the Limitation Act (XV of 1877) begins to run from the date of the issuing of notice under Section 248 of the Code of Civil Procedure and it is immaterial whether the application of the 4th December 1906, was or was not valid. In support of this contention the learned Vakil for the applicant relies on Dhonkal Singh v. Phakkar Singh 15 A. 84 in the head-note of which it is stated that the issuing of a notice under Section 248 of the Code of Civil Procedure gives a fresh starting point of limitation under article 179 Clause 5 of Schedule second of the Indian Limitation Act (1877) whether such notice is issued on a valid or on invalid application for execution. The learned Vakil for the opposite party meets this proposition by citing-a ruling reported in Kanimal Singh v. Laraiti 2 A.L.J. 67. which lays down that a notice under Section 248 of the Code of Civil Procedure upon an application for execution of a time-barred decree could not have the effect of reviving the decree. He further contends that a question of limitation wrongly decided by a Court of Small Causes furnishes no ground for interference by this Court, and to support this he relies on Raghunath Sahai v. The Official Liquidator of the Himalyan Bank 15 A. 139. I am of opinion that the rulings relied on by the learned Vakil for the opposite party have no application. The ruling in Kammal Singh v. Laraiti 2 A.L.J. 67 has no application, because in that case the decree was time-barred, while in the present case the decree was not time-barred and the application of the 4th December, 1906 was an only application not in accordance with law. The case before me is governed by the Full Bench ruling reported in Dhonkal Singh v. Phakkar Singh 15 A. 84. The proposition that this Court has no power to disturb the judgment of a Court of Small Causes on a question of limitation is also not a correct proposition. A learned Judge of this Court, no doubt, in Raghunath Sahai v. The Official. Liquidator of the Himalyan Bank 15 A. 139 ruled that the conclusion arrived at by a Court of Small Causes on a question of limitation is not to be disturbed. This led to a Full Bench ruling in Sarman Lal v. Khuhan 16 A. 476 in which the following remarks occur: 'We are satisfied that the Legislature did not intend to give tinder the provisions of Section 25 of Act IX of 1887, practically an appeal on law and facts from a decision of the Court of Small Causes whose decision is final, subject to the powers given by Section 25; and, in our opinion, Section 25 is not intended by the Legislature to be applicable except in those cases to which Section 622 of Act XIV of 1882 was considered to be applicable before the decision of their Lordships of the Privy Council in Amir Hasan Khan v. Sheo Baksh Singh 11 G. 6 : 11 I.A. 237. notwithstanding the above remarks I find that this Court has interfered both on questions of fact and law in Civil Revision. For interference on a question of fact see McCarran v. Welti 11 C. 6 : 11 I.A. 237 and Lt. Col. J.G. Turner v. Jagmohan Singh 27 A. 531 : A.W.N. (1905) 77 : 2 A.L.J. 297. For interference on a question of law, that is, resjudicata see the judgment of this Court in Civil Revision No. 46 of 1903 delivered on the 14th February 1904. In order to interfere in this case I have to consider if substantial justice calls for it. There is no doubt that the decree-holder has a decree in his favour. He ought not to be deprived of the fruit of his decree unless an express provision of law debars him. In my opinion in this case there is no such provision. I, therefore, allow this application with costs and setting aside the order of the learned Judge of the Court of Small Causes send back the case, that the Court may proceed with the execution of the decree.


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