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Ghulam Nasir-ud-dIn and anr. Vs. Hardeo Parsad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.343
AppellantGhulam Nasir-ud-dIn and anr.
RespondentHardeo Parsad
Excerpt:
.....from which limitation runs--exclusion of time. - - in either case the present application was well within time. following the precedent therein laid down, the present proceeding instituted on april l4th, 1910, was well within three years of june 29th, 1907. on january 1st, 1909, act ix of 1908 came into force; it will be remembered that in this case, an injunction was granted on april 6th, 1905, and lasted until january 26th, 1909, if this period be excluded in computing the period of limitation, the present application is well within the time granted by article 182 of act ix of 1908. it was contended that the injunction issued by the delhi court simply prohibited the sale of the property by hafiz mohammad khairati and hafiz ahmad husain, that it did not stay..........on march l0th, 1905. they followed up the objection by a declaratory suit against the bank, decree-holder. they also applied for an injunction. this was granted by the district judge of delhi and under this injunction the sale of the property in suit was stayed until the decision of the suit. on june 29th, 1907, the delhi court gave its decision in the declaratory suit and on july 19th, 1907, the pleader for the bank, decree-holder, put in an application in this court stating that as the attached property has now been released, the bank will find out new property and then apply for execution and meanwhile the case might be shelved, and an order was passed sending it to the record-room. on april l4th,1910,hardeo parsad, who had in the interim purchased the decree from the bank and.....
Judgment:

1. The North-Western Bank Company, Limited, obtained a decree against four persons, Hamza Ali Khan, Khaja Ghulam Nasir-ud din Khan, Musammat Aga Begamand Moghul Jani, judgment-debtors, on December 1897. Hamza Ali Khan died and Paizud-din, Afzal Ali and the three remaining original debtors have been put on the record as his heirs. An appeal was filed to this Court and that appeal was decided on February 7th, 1900. The decree passed by the Subordinate Judge of Meerut was to a certain extent modified. Execution appears to have been first taken out on January 15th, 1898. Several other applications in execution followed, One of these was an application for execution made in the Court of the District Judge of Delhi on July 8fch,1904. This application was made within time and as a result some property situated in Delhi was attached as the property of Aga Begam, judgment-debtor. Upon attachment, two persons, Hafiz Khairati and Hafiz Ahmed Husain, objected. The objection filed by them was rejected on March l0th, 1905. They followed up the objection by a declaratory suit against the Bank, decree-holder. They also applied for an injunction. This was granted by the District Judge of Delhi and under this injunction the sale of the property in suit was stayed until the decision of the suit. On June 29th, 1907, the Delhi Court gave its decision in the declaratory suit and on July 19th, 1907, the Pleader for the Bank, decree-holder, put in an application in this Court stating that as the attached property has now been released, the Bank will find out new property and then apply for execution and meanwhile the case might be shelved, and an order was passed sending it to the record-room. On April l4th,1910,Hardeo Parsad, who had in the interim purchased the decree from the Bank and had got his name entered on the record as decree-holder, instituted proceedings for attachment and sale of certain moveable and immoveable property said to belong to the judgment-debtors. Khaja Ghulam Nasir-ud-Din Khan and Musammat Aga Begam, judgment-debtors, took objections. They urged that as no application had been made by the decree-holder since July 8th, 1904, the present application must be considered as out of time and barred by limitation. They also took objection that Section 15 of Act IX of 1908 could not be utilized by the decree-holder in computing the period of limitation. They raised other objections but it is unnecessary to go into them so far as the present appeal is concerned. The lower Court held that if the Act of 1877 applied to the case (1) the decree-holder's application for execution made to the Court of Delhi and the injunction which was issued by that Court brought the case within Article 178 of the Limitation Act of 1877 and (2) as the present application was within three years from the date of the final decision of that suit, it was within time. If the new Act governed the case, then the Court held that, the period from April 6th, 1905 to January 26th, 1909 must be excluded from computation. In either case the present application was well within time. The Subordinate Judge rejected the objections of the judgment-debtors. The judgment-debtors have now come in appeal to this Court and they contend that the application is time-, barred and that the lower Court was wrong in holding that the injunction issued on April 6th,19C5,could be utilized by the decree-holder in saving limitation.

2. We are of opinion that the application for execution instituted on April 14th, 1910, may justly be reckoned as within time. The date of the decree sought to be executed and the time from which the period of limitation began to run in this case was February 1900. At that time Act XV of 1877 was the Act governing limitation of suits and applications and the Article applying to the present proceeding would be Article 179 of the second Schedule of that Act. No question has even arisen regarding the application made to the Court of Delhi on July 8th, 1904, as being an application which was time-barred. The flow of limitation was obstructed by the objection instituted on December 3rd, 1901. It is true that that objection was rejected on March 10th, 1905, but the objection was followed up by a declaratory suit, also the act of Hafiz Khairati and Hafiz Ahmad Hussain. Next in order came the injunction which was granted on April 6th, 1105. This was also an act of the persons above mentioned and not an act of the decree-holder. It was not until June 29th, 1907, that the obstructions thus caused were removed and the period of limitation bpga'n to run freely again. This Court in Behary Lal Misir v. Jagannath Parshed 28 A. 651 : A.W.N. (1906) 152 : 3 A.L.J. 845 under similar circumstances, held that the Article which in such a case applies is Article 178 of of the second Schedule of the Limitation Act and that the decree-holder's right to apply accrued, when by the decree the sale of a share of two villages in that case was set aside. The present appeal, the learned Judge went on to say, having been made within three years from that day was, therefore, within time. Following the precedent therein laid down, the present proceeding instituted on April l4th, 1910, was well within three years of June 29th, 1907. On January 1st, 1909, Act IX of 1908 came into force; tide Section 1, Clause 3 of Act IX of 1908 and it has been contended that the present case should be governed by Article 182 of the first Schedule of that Act. Even if so, it appears to us that the lower Court was quite right in holding that Section 15 of the Act saves the decree-holder from limitation being set up against him under Act IX of 1908. Section 14 which corresponded with Section 15 of the present Act made provisions for suits only but under the present Act in computing the period of limitation prescribed for either suits or applications for execution of decree where execution has been stayed by injunction, the time of the continuance of the injunction shall be excluded in favour of the decree-holder. It will be remembered that in this case, an injunction was granted on April 6th, 1905, and lasted until January 26th, 1909, If this period be excluded in computing the period of limitation, the present application is well within the time granted by Article 182 of Act IX of 1908. It was contended that the injunction issued by the Delhi Court simply prohibited the sale of the property by Hafiz Mohammad Khairati and Hafiz Ahmad Husain, that it did not stay the execution of the decree altogether. In our opinion, there is no force in this contention. A decree-holder is not bound to search oat and to proceed against all property of which his judgment-debtor may stand possessed. This would only encourage the setting up of bogus claims to each property as attached. If he is executing his decree against property which he bona fide believed to be the property of his judgment-debtor, he is executing his decree within the meaning of the law. For this reason, we hold that the application made by the decree-holder is not time-barred. It is unnecessary to consider the other pleas taken in this appeal and we dismiss this appeal with costs, which will include in this Court fees on the higher scale.


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