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Kashi Prasad and anr. Vs. Mathura Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1926All145
AppellantKashi Prasad and anr.
RespondentMathura Prasad and ors.
Excerpt:
- - rani(1890) 13 all 1. that case is clearly distinguishable from the case which we are now dealing with......was based upon an order contained in a decree which was passed on 29th january 1917. that was a final decree in a partition suit. in that suit the present appellants were arrayed as the third set of defendants and mathura prasad and harbans prasad who have made this application for execution were arrayed as the first and fourth sets of defendants.4. under the terms of the final decree passed by the court below on 29th january 1917, the third set of defendants were directed to pay to mathura prasad the first set of defendants and harbans prasad the fourth set of defendants, rs. 2,335-8-3.5. if limitation for the application which we are now considering is to be deemed to run from the date of this final decree there might be some force in the objection which was made by the present.....
Judgment:

1. This is an appeal in the execution department. It appears that on 19th March 1923, Babu Mathura Prasad and Harbans Prasad made an application for execution against the appellants here, namely, Kashi Prasad and Madan Mohan Prasad, to recover a sum of Rule 3,152.

2. The appellants here challenged the application alleging that it had been made beyond time and was not maintainable. The Court below has held that the application is within limitation and now we have this appeal in which we are asked to find that the order of the Court below is wrong.

3. The application now under consideration was based upon an order contained in a decree which was passed on 29th January 1917. That was a final decree in a partition suit. In that suit the present appellants were arrayed as the third set of defendants and Mathura Prasad and Harbans Prasad who have made this application for execution were arrayed as the first and fourth sets of defendants.

4. Under the terms of the final decree passed by the Court below on 29th January 1917, the third set of defendants were directed to pay to Mathura Prasad the first set of defendants and Harbans Prasad the fourth set of defendants, Rs. 2,335-8-3.

5. If limitation for the application which we are now considering is to be deemed to run from the date of this final decree there might be some force in the objection which was made by the present appellants. It appears however that on 20th November 1917, the plaintiffs in that suit, Nandan Prasad and others filed an appeal against the final decree in the High Court, That appeal was finally disposed of by this Court on 9th February 1922. This Court dismissed both the appeal and the cross objections. It is stated that neither Mathura Prasad the first set, nor Harbans the fourth set nor the present appellants Kashi Prasad and Madan Mohan the third set raised any objections to the final decree in the course of this appeal by way of cross-objection or otherwise. On the other hand, it is admitted that these persons were all parties to the appeal in this Court.

6. We are of opinion that the Subordinate Judge was right in holding that limitation for the execution of this decree with which we are now dealing began to run from the date of the High Court's decree, that is to say, 9th February 1922. We do not think it can be maintained that because the present appellants here or the present respondents did not challenge the final decree in the proceedings by way of appeal which were taken in this Court that, therefore, their relations are governed entirely by the final decree of the 29th January 1917, as passed by the Trial Court.

7. It is clear to us that when the appeal against the final decree was filed by the plaintiffs in the partition suit the entire partition was under review, and if it had so happened that any relief had been given to the plaintiffs-appellants in that appeal the necessary consequence would have been that the whole partition decree would have had to be altered. In our opinion the decree must be treated as a single decree and not as a series of decrees in favour of or against the various parties to the case. We are referred by the appellant's learned Counsel to the Full Bench ruling of this Court reported as Mashiut-un-nissa v. Rani(1890) 13 All 1. That case is clearly distinguishable from the case which we are now dealing with. We hold that the Court below was right in the view it took of this question of limitation and we dismiss this appeal accordingly with costs including in this Court fees on the higher scale.


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