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Babu Ram Vs. Pearey Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All390; 50Ind.Cas.143
AppellantBabu Ram
RespondentPearey Lal and ors.
Cases ReferredBhagwati v. Banwari Lal
Excerpt:
limitation act (ix of 1908), schedule i, article 182(5) - civil procedure code (act v of 1908), order xxi, rule 95, application under, whether step in-aid of execution. - .....arises was presented on the 15th of march 1917. it was, therefore, beyond limitation, unless the decree-holder could show that there had been in the interval, and within three years of this present application, another application made in accordance with law to the proper court to take some step in-aid of execution of the decree or order, within the meaning of article 182, clause (5) of the 1st schedule to the indian limitation act (act ix of 1909). now it is admitted that there had been in the interval a partial satisfaction of the decree by a sale of a portion of the property. at this sale the hypothecated property was sold and the decree-holder had purchased it with the leave of the court on the 20th of january 1914. on the 26th of june 1914, the decree-holder, on the strength of.....
Judgment:

Piggott, J.

1. The question for determination in this appeal is one of limitation. The fasts are not in dispute. The decree under execution was one of 3rd December 1912, and the application for execution oat of which this appeal arises was presented on the 15th of March 1917. It was, therefore, beyond limitation, unless the decree-holder could show that there had been in the interval, and within three years of this present application, another application made in accordance with law to the proper Court to take some step in-aid of execution of the decree or order, within the meaning of Article 182, Clause (5) of the 1st Schedule to the Indian Limitation Act (Act IX of 1909). Now it is admitted that there had been in the interval a partial satisfaction of the decree by a sale of a portion of the property. At this sale the hypothecated property was sold and the decree-holder had purchased it with the leave of the Court on the 20th of January 1914. On the 26th of June 1914, the decree-holder, on the strength of this auction-purchase, applied to the execution Court under Order XXI, Rule 95, of the Civil Procedure Code to give him possession of the property which he had purchased. According to a clear decision of a Bench of this Court in Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117 : 9 Ind. Dec. (N.S.) 308, this application does operate as a step in-aid of execution of the decree and does save limitation for any subsequent application.

2. The contention for the judgment-debtor-appellant is that the principles underlying the above decision were discussed by a Full Bench of this Court in Bhagwati v. Banwari Lal 1 Ind. Cas. 416 (F.B.) : 31 A. 82 : 6 M.L.T. 185 : 6 A.L.J. 71 and that the decision of the Full Bench in that case is inconsistent with the view taken in Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117 : 9 Ind. Dec. (N.S.) 308.

3. It is further pointed out that one of the learned Judges who delivered the judgment of the majority of the Full Bench stated in express-terms that he was unable to agree with the view taken by the learned Judges who decided Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117 : 9 Ind. Dec. (N.S.) 308. It seems to us that the questions for decision in the two rulings were altogether different and that the opinion expressed by one of the learned' Judges in the latter case cannot be treated as overruling the considered decision of a Bench of this Court on a question of limitation, which was certainly not before the Full Bench when they pronounced the later decision.

4. In our opinion, therefore, the learned Subordinate Judge has rightly followed the considered decision of this Court on the particular question before him for determination. We dismiss this appeal with costs, including fees on the higher scale.

Walsh, J.

5. I agree. The question we have to decide is whether an application of this nature made under Order XXL, Rule 95, is a step-in-aid of execution within the meaning of Article 182 of the present Limitation Act. I have already expressed my views several times that in these matters, which are matters of procedure, the Courts ought to maintain, if possible, a consistent view, even if Judges do not always agree with the view which has been already authoritatively expressed and that also in matters in which a decree-holder seeks to enforce his undoubted right, a liberal interpretation ought always to be adopted if it can be done without doing violence to the express language of the Legislature. Apart from authority I should have no hesitation in holding that an application of this nature was a step-in-aid of execution. In plain language it is obviously one of the methods and a most important method of the realization of his decree by a decree-holder and the machinery for doing it by this method is provided in the Code under the ordinary order, which contains the whole of the provisions for realization by execution. A Full Bench in Sujan Singh v. Hira Singh 12 A. 399 (F.B.) : A.W.N. (1890) 125 : 6 Ind. Dec. (N.S.) 1000 decided that the expression was intended to cover any application made according to law in furtherance of execution proceedings under a decree The two Judges' decision in Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117 : 9 Ind. Dec. (N.S.) 308 seems to me directly in point and the reasoning contained in the judgment quite unanswerable. The point was not before the Full Bench which decided Bhagwati v. Banwari Lal 1 Ind. Cas. 416 (F.B.) : 31 A. 82 : 6 M.L.T. 185 : 6 A.L.J. 71. In neither of the reports in which that authority is reported, is the authority of Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117 : 9 Ind. Dec. (N.S.) 308 said to have been overruled. The judgment of the Full Bench which decided Bhagwati v. Banwari Lal 1 Ind. Cas. 416 (F.B.) : 31 A. 82 : 6 M.L.T. 185 : 6 A.L.J. 71 could not overrule the previous case on the point which was before them and that case must be treated as still the law in these provinces.


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