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Raghunandan Lal and ors. Vs. Badan Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in43Ind.Cas.914
AppellantRaghunandan Lal and ors.
RespondentBadan Singh and ors.
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 11, 12 - execution, application for, unaccompanied by copy of decree, whether application in accordance with law--limitation act  ix of 1908, schedule i, article 182. - .....admitted that if this application was an application for execution ''in accordance with law', the present application in within time. the application was in writing and seems to have complied with all the provisions of order xxi, rule 11. it being an application for the sale of immoveable property under a mortgage-decree, the provisions of rules 12, 13 and 14 do not apply. the application, however, was unaccompanied by an affidavit, a receipt of inspection of the registration office and copies of the khewat and decree. the court granted time to the applicant to file these documents and all the documents were subsequently bled except a copy of the decree. this not being done, the application was struck off on the 30th of march 1916. the court below held that under these circumstances the.....
Judgment:

1. This appeal arises out of an application for execution of a mortgage-decree. An application was made on the 1st of March 1916, and it is admitted that if this application was an application for execution ''in accordance with law', the present application in within time. The application was in writing and seems to have complied with all the provisions of Order XXI, Rule 11. It being an application for the sale of immoveable property under a mortgage-decree, the provisions of Rules 12, 13 and 14 do not apply. The application, however, was unaccompanied by an affidavit, a receipt of inspection of the Registration Office and copies of the khewat and decree. The Court granted time to the applicant to file these documents and all the documents were subsequently Bled except a copy of the decree. This not being done, the application was struck off on the 30th of March 1916. The Court below held that under these circumstances the application could not be deemed an application in accordance with law, and so time would run from the previous application for execution and the present application in such case was admittedly beyond time. It seems to us that the view taken by the Court below was not correct. No doubt under the provisions of Order XXI, Rule 11, Clause 3, the Court is entitled to require the applicant to produce a certified copy of the decree, and if the applicant does not do so the Court is entitled to reject the application; but the application in the present case when made fulfilled all the requirements of Rule 11 necessary to an application for sale of property mortgaged in execution of the mortgaged decree. It was only after the application had been presented that the Court made its order that the applicant should produce a certified copy of the decree. This being so, it seems to us that the application was in accordance with law and saved limitation. We allow the appeal, set aside the order of the Court below and remand the case to that Court with directions to re-admit the application and proceed to hear and determine the application according to law. As we think that the decree-holder ought to have had the necessary documents before the Court and that the present appeal is due to his carelessness, we direct the parties to pay their own costs of this appeal.


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