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Lachhman Das Vs. Ahmad Hasan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in38Ind.Cas.105
AppellantLachhman Das
RespondentAhmad Hasan
Cases ReferredRahmit Rai v. Satgur Rai
Excerpt:
appeal - execution of small cause decree in munsif's court, order in, whether appealable--jurisdiction--limitation act (ix of 1908), section 19--acknowledgment, what amounts to. - - the warrant of arrest had, however, been issued, and on the 5th of february 1912 the judgment-debtor filed a petition through his pleader in which he said that he was a poor man, that he was practically starving, and that the warrant of arrest should not be executed. 450. in fact it was distinctly dissented from, and it was also pointed out that in the case of shiam behari lal v. in the present case all that the judgment-debtor said in his petition of 5th february 1912 was that ho objected to being arrested because he was a poor man and he asked that the warrant of arrest should not be executed until his..........was made. on the 24th of january 1912 the application was dismissed on the request of' the decree-holder. the warrant of arrest had, however, been issued, and on the 5th of february 1912 the judgment-debtor filed a petition through his pleader in which he said that he was a poor man, that he was practically starving, and that the warrant of arrest should not be executed. the petition was not signed by the judgment-debtor himself but was signed by his pleader. on the 5th of january 1918 a fresh application for execution was filed in the court of the munsif. the small cause court in the meantime had ceased to exist. objection was taken that the. application was time-barred. the decree-holder pleaded that the petition of 5th february 1012 contained an acknowledgment of the existence.....
Judgment:

Tudball, J.

1. This is a revision arising out of the following circumstances:--Lachhman Das obtained a decree on the 9th of April 1911 in the Court of Small Causes. On the 21st of December 1911 an application for execution by the arrest of the judgment-debtor was made. On the 24th of January 1912 the application was dismissed on the request of' the decree-holder. The warrant of arrest had, however, been issued, and on the 5th of February 1912 the judgment-debtor filed a petition through his Pleader in which he said that he was a poor man, that he was practically starving, and that the warrant of arrest should not be executed. The petition was not signed by the judgment-debtor himself but was signed by his Pleader. On the 5th of January 1918 a fresh application for execution was filed in the Court of the Munsif. The Small Cause Court in the meantime had ceased to exist. Objection was taken that the. application was time-barred. The decree-holder pleaded that the petition of 5th February 1012 contained an acknowledgment of the existence of the debt and, therefore, the application for execution was within time. The Munsif held that the application was not time-barred on the ground that the petition of 5th February 1912 did contain an acknowledgment. An appeal was preferred to the District Judge, who held that the application was barred by time inasmuch as the petition of 5th February 1912 not having been signed by the judgment-debtor himself could not be deemed to be an acknowledgment within the meaning of Section 19 of the Limitation Act. He, therefore, set aside the order of the first Court and dismissed the application for execution. The decree-holder applies here in revision. Two points are taken: (1) that no appeal lay to the District Judge; (2) that even if it did, the petition of 5th February 1912 did contain an acknowledgment and that under Explanation It of Section 19 of the Limitation Act the Pleader was an agent duly authorised by the judgment-debtor to make the statement in that petition. In regard to the question of jurisdiction, the decisions of this Court perhaps are a bit conflicting. The later decisions are all against the applicant. In Mangal Sen v. Rup Chand 13 A. 324 : A.W.N. (1891) 96 : 7 Ind. Dec. (N.S.) 205, a Bench of this Court held as follows:--'In other words, whatever the intention of the Legislature was, we read Section 35 of Act IX of 188V in the same sense that we read the concluding paragraph of Section 25 of the Code of Civil Procedure.' If this view be correct, then the Munsif in the present case acted as a Small Cause Court and no appeal lay. But this decision has not been accepted in Sarju Prasad v. Mahadeo Pande 29 Ind. Cas. 996 : 13 A.L.J. 639 : 37 A. 450. In fact it was distinctly dissented from, and it was also pointed out that in the case of Shiam Behari Lal v. Kali 22 Ind. Cas. 909 : 12 A.L.J. 109, one of the Judges who was a party to the decision in Mangal Sen v. Rup Chand 13 A. 324 : A.W.N. (1891) 96 : 7 Ind. Dec. (N.S.) 205 had himself decided the question of Section 35 of Act IX of 1887 in the opposite way. In Sarju Prasad v. Mahadeo Pande 29 Ind. Cas. 996 : 13 A.L.J. 639 : 37 A. 450, it was pointed out that in the Calcutta and Bombay High Courts the opposite view had also been taken and their view had been followed in the Court at Oudh. It seems to me personally that prima facie the order of the Munsif was passed by him qua Munsif, and unless there is some express provision of law taking away the right of appeal, it must be held that an appeal did lie. Section 35 of Act IX of 1887 nowhere in clear terms takes away the right of appeal from an order passed under the circumstances such as prevailed in the present case. All that it lays down is that where a Court of Small Causes, or a Court invested with the jurisdiction of a Court of Small Causes, has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to the case, whether before or after decree, which, if the Court had not ceased to have jurisdiction, might have been had therein, may be had in the Court which, if the suit out of which the proceeding has arisen were about to be instituted, would have jurisdiction to try the suit.' In the present case the Court of Small Causes Having ceased to exist, the decree-holder was bound to apply for the execution of his decree to the Court of the Munsif. Section 24 of the Code of Civil Procedure relates to suits transferred or withdrawn. In the present case no suit has in fact been transferred or withdrawn, and Section 24, Civil Procedure Code, cannot be read into Section 35 of Act IX of 1887 so as to destroy a right of appeal without some express language in the Act. The current of decisions being, in my opinion, against the applicant, including the latest decisions of this Court, I must hold that an appeal did lie.

2. In regard to Section 19 of the Limitation Act, it is quite clear that the District Judge overlooked the Explanation II of that section, If in the petition of 5th February 1912 there is an acknowledgment of the debt, it is clear that that petition was signed by an agent duly authorized by the judgment-debtor to file it and put into it all that it contained. If that document contains an acknowledgment, there can be no doubt that it was an acknowledgment by the judgment-debtor and would save time in favour of the decree-holder. But it seems to me difficult to hold that the language of the petition contains an acknowledgment of a debt due. My attention has been called to a Pull Bench ruling in Rahmit Rai v. Satgur Rai 3 A. 247 : 2 Ind. Dec. (N.S.) 119. The petition in that case was of a very different nature. In that case the petitioner stated that he had asked the decree-holder to allow him time to make some arrangement for paying off the debt, and in consideration of the property being ancestral the decree-holder had agreed to allow time. There was a clear and distinct acknowledgment of the debt. In the present case all that the judgment-debtor said in his petition of 5th February 1912 was that ho objected to being arrested because he was a poor man and he asked that the warrant of arrest should not be executed until his objection had been decided; in other words, it was merely an objection to the execution of the decree in the manner sought by the decree-holder. It may be said that if he had paid off the debt, or if he had meant that the debt was not due, he would have said so in plain language, and that the natural inference from what he had said was that the debt was due. It seems to me that an acknowledgment must be a clear acknowledgment and not be left only to sheer inference. In the Full Bench case there was language the meaning of which beyond all doubt was that the debt was due. In the present case there is simply the bare fact that the man did not say that he had paid off the money, Such omission cannot be taken as an admission that the debt was due. In my opinion, the petition of 5th February 1912 did not contain an acknowledgment at all, and, therefore, the application was barred by time. The result is that the application is dismissed with costs.


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