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Abbas Ali Vs. Gulab Rai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All520; 121Ind.Cas.818
AppellantAbbas Ali
RespondentGulab Rai
Excerpt:
- - we are clearly of opinion that the decree passed in the case was within jurisdiction and was capable of execution......the date of the decree. upon the expiry of the period of 15 months the decree-holder applied for a final decree to be passed in his favour. notice of this application was duly served upon the judgment-debtor but he did not contest the application. the result was that a final decree was passed on 6th february 1926.3. the decree-holder applied for the execution of this final decree and it was resisted by the judgment-debtor on the ground that the decree was passed without jurisdiction and was therefore a nullity. it was contended that the original decree passed on 29th june 1923 was a self-contained decree which was capable of execution and that the provisions of order 34, rule 5, civil p.c., did not apply to such a decree. it was also contended that the decree dated 29th june 1923 was.....
Judgment:

Sen, J.

1. This is a judgment-debtor's appeal and arises out of an application for execution which was made in the year 1928.

2. A compromise decree was obtained by the plaintiff-respondent in a suit for sale on a mortgage on 29th June 1923. The decree was passed in plaintiff's favour for Rs. 5,000 and the decree provided that the amount was to be paid by the judgment-debtor in easy instalments within 15 months of the date of the decree. Upon the expiry of the period of 15 months the decree-holder applied for a final decree to be passed in his favour. Notice of this application was duly served upon the judgment-debtor but he did not contest the application. The result was that a final decree was passed on 6th February 1926.

3. The decree-holder applied for the execution of this final decree and it was resisted by the judgment-debtor on the ground that the decree was passed without jurisdiction and was therefore a nullity. It was contended that the original decree passed on 29th June 1923 was a self-contained decree which was capable of execution and that the provisions of Order 34, Rule 5, Civil P.C., did not apply to such a decree. It was also contended that the decree dated 29th June 1923 was capable of execution within three years from the expiry of 15 months and that the present application was beyond that period and was therefore statute barred.

4. It is not necessary to determine whether the provisions of Order 34, Rule 5, Civil P.C., apply to the decree dated 29th June 1923. The short ground upon which the appeal can be disposed of is that the decree-holder rightly or wrongly applied to the proper Court for preparing a final decree in the case. The Court had jurisdiction to entertain the application. The judgment-debtor did not contest and the Court eventually passed a final decree. We are clearly of opinion that the decree passed in the case was within jurisdiction and was capable of execution. The application for execution being within three years of the final decree is within time. We dismiss the appeal under Order 41, Rule 11, Civil P.C.


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