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Kalika Baksh Singh and ors. Vs. Ram Charan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All183(2); 46Ind.Cas.584
AppellantKalika Baksh Singh and ors.
RespondentRam Charan and ors.
Excerpt:
limitation act (ix of 1908), schedule i, article 182(6) - 'date of issue of notice', meaning of. - .....was wrong.3. a second point was mentioned in the course of the argument, namely, that some of the decree-holders are minors and that they are entitled to the benefit of section 7 of the limitation act. it appears in the present case that at the time the decree was made the decree-holders were all of full age, that also at the time of the application of 1914 the decree-holders were of full age, and that it was after the date on which the application was struck off that the minority ensued. under these circumstances the decree holders are not entitled to the benefit of section 7. see bhagat bihari lal v. ram nath 27 a. 704 : 2 a.l.j. 453; a.w.n. (1905) 163. we were referred to the full bench decision in zamir hasan v. sundar 22 a. 199; a.w.n. (1900) 8 : 9 ind. dec. (n.s.) 1163. in that.....
Judgment:

1. This appeal arises out of an application for execution of a decree. Originally there was a decree in a mortgage suit. The mortgaged property having all been sold and found insufficient to satisfy the debt, a decree under Order XXXLV, Rule 6, was granted on the 4th of March 1911. An application was made for execution of this decree and on the 3rd of March 1910, the Court ordered that notice should go to the judgment-debtors. The application in execution was subsequently struck off. It appears that notice did go from the Court but nevertheless the application was struck off. On the 5th of March 1917, the present application for execution was made. It was met with the objection on behalf of the judgment-debtors that it was barred by time. The notice which went from the Court in consequence of the Court's order, dated the 3rd March 1914, was dated the 4th of March. The 4th of March 1917 was a Sunday. Accordingly if the period of limitation is to be reckoned from the 4th of March 1914, it is just within time; if on the other hand it is to be reckoned from the 3rd of March 1914, it is just too late. The Article which is applicable is Article 182, Clause (6). That clause is as follows:

(Where the notice next hereinafter mentioned has been issued) the date of issue of notice to the person against whom execution is applied for to show cause why the decree should not be executed against him, when the issue of such a notice is required by the Code of Civil Procedure, 1908.

2. Notice was required by the Code of Civil Procedure in the present case, be cause the decree was more than a year old. The question in the case is as to the meaning of the expression date of issue of notice.' Under the previous Limitation Act the words were identical, except that instead of the expression date of issue of notice' the expression is 'date of issuing a notice.' Under the previous Act the practice had been uniform in this Court since the year 1881 that the 'date of issuing a notice' meant the date of the order of the Court directing that notice should go. The Bombay High Court seems to have followed a similar practice, whilst the High Courts of Madras and Calcutta have taken a different view. The expression 'issuing of a notice' or 'issue of notice' is somewhat ambiguous. What happens in the Court is that an application is made for execution. The Court orders that notice should go to the party against whom execution is sought. That notice is prepared in the office and is signed either by the Judge or some person whom he deputes to sign for him. In the present case the notice is signed by the Munsarim. After the notice is prepared and signed and sealed, it is given to the Nazir who in turn selects a peon, who is to serve it on the party to whom it is directed. It is extremely difficult to say when a notice of this kind can be said to have been 'issued' The 'issue' is certainly not complete when the Court makes its order directing that notice is to go. It is still incomplete when it is prepared and signed by the Munsarim. In fact the 'issuing' is not fully complete until it has actually left the hands of the Nazir and has been given into the hands of the peon (or process-server). If this question which we have had discussed before us in the present case was res Integra, we would find it extremely difficult to say what was the date of the 'issue' of the notice within the meaning of the Article. The 'issue' of a notice seems to be a proceeding which begins with the order of the Court and ends with delivery of a notice to a process-server for service. Possibly a convenient date might be the one which has been suggested in the course of the argument, namely, the date which the notice itself bears. We, however, think that we ought to adhere to the practice which has been in force for a very great number of years in these provinces, unless we come to the conclusion that there was a deliberate alteration in the present Limitation Act. What is required in the interest of justice is a settled rule and a date that is certain. The date of handing over to the peon for service would be a very inconvenient date. We find it impossible to see that there is any difference between the expression 'date of issuing of a notice' and the expression 'date of issue of notice.' That being so, we think the established practice should prevail and that the order below was wrong.

3. A second point was mentioned in the course of the argument, namely, that some of the decree-holders are minors and that they are entitled to the benefit of Section 7 of the Limitation Act. It appears in the present case that at the time the decree was made the decree-holders were all of full age, that also at the time of the application of 1914 the decree-holders were of full age, and that it was after the date on which the application was struck off that the minority ensued. Under these circumstances the decree holders are not entitled to the benefit of Section 7. See Bhagat Bihari Lal v. Ram Nath 27 A. 704 : 2 A.L.J. 453; A.W.N. (1905) 163. We were referred to the Full Bench decision in Zamir Hasan v. Sundar 22 A. 199; A.W.N. (1900) 8 : 9 Ind. Dec. (N.S.) 1163. In that case there had been an application on behalf of minor decree-holders which gave a fresh starting point and accordingly the decree holders were within the express provisions of Section 7.

4. We allow the, appeal, set aside the order of the Court below and dismiss the application for execution with costs in both Courts.


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