Skip to content


Jiwat Dube Vs. Kali Charan Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All478
AppellantJiwat Dube
RespondentKali Charan Ram and ors.
Excerpt:
execution of decree - application for execution giving wrong date of decree,--amendment mowed after limitation--amendment relating back to former applications. - - assuming that application to be a good one in point of law, the second application made on the 14th november 1891, would have been in point of time a good application......the three years' period, but, we are informed by mr. niblett, specified in his application the date november 25th, 1885, as being the date of the decree sought to be executed. assuming that application to be a good one in point of law, the second application made on the 14th november 1891, would have been in point of time a good application. we are told, however, that the second application repeated the mistake as to the date of the decree. the third application was made on the 14th of november 1894, just therefore within time, were there no other objection. that application also described the decree as of the 25th of november 1885. the mistake in regard to the date of the decree passes through all these applications. upon the third application the judgment-debtor took objection,.....
Judgment:

Blair and Aikman, JJ.

1. This is the appeal of a decree-holder. The sole point urged upon us is one of limitation. It has been found that the application before the Court below was an application not made within three years of a previous legal application. The facts are these. An ex parte decree was obtained by the present decree-holder on the 25th November 1885. That decree was subsequently set aside. Another decree, however, was made in favour of the decree-holder on the 21st September 1886. That was then his only extant decree, the only one therefore capable of execution, and, we cannot doubt, the one he wished to execute. He made his first application on the 21st January 1889, within the three years' period, but, we are informed by Mr. Niblett, specified in his application the date November 25th, 1885, as being the date of the decree sought to be executed. Assuming that application to be a good one in point of law, the second application made on the 14th November 1891, would have been in point of time a good application. We are told, however, that the second application repeated the mistake as to the date of the decree. The third application was made on the 14th of November 1894, just therefore within time, were there no other objection. That application also described the decree as of the 25th of November 1885. The mistake in regard to the date of the decree passes through all these applications. Upon the third application the judgment-debtor took objection, that the decree sought to be executed, to wit, the decree of the 25th of November 1885, was time-barred. The decree-holder applied for amendment by substituting the correct date of the only extant decree held by him against the judgment-debtor. The amendment was allowed after the lapse of the three years. Mr. Jwala Prasad invites us to say that the Lower Appellate Court was wrong in ruling that the decree in relation to which the application was made was no longer capable of execution. Ha suggests that there never could have been any doubt as to the intention of the appellant, and it appears there could never have been any doubt in the minds of the judgment-debtors, as to the decree which was intended to be executed. He suggests, therefore, that the amendment was properly and rightly made and relates hack to the date of the original informal application. In support of his contention he cites the judgment of this Court in Ajudhia Ram v. Muhammad Munir Weekly Notes 1893 p. 112. It is there ruled that an application having once been admitted the date of a subsequent amendment would not by reason of such amendment become the date of the application. We approve of that ruling, and therefore hold that the third application was within time. Until the date of present application we are not aware of any objection taken by the judgment-debtors to the previous applications upon the ground of the erroneous date being specified as the date of the decree.

2. We therefore allow this appeal, and set aside the order of the Lower Appellate Court upon the preliminary point, but without costs, as it has arisen through the mistake of the decree-holder. We remand the case under Section 562 of the Code of Civil Procedure for the decision of the remaining issues contained in the memorandum of appeal to the Lower Appellate Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //