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Musammat Muhammadi Begum and anr. Vs. Musammat Umda Begum and After Her Death Musammat Afsar Jahan Begum and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in66Ind.Cas.751
AppellantMusammat Muhammadi Begum and anr.
RespondentMusammat Umda Begum and After Her Death Musammat Afsar Jahan Begum and ors.
Excerpt:
execution application - notice to judgment-debtor--failure to appear--decision, ex parte--objection, that application was time-barred, whether maintainable. - - that being so we think that their failure to oppose the application then precludes them afterwards......which was filed on the 1st of august 1919. the office reported that this application was time-barred. thereupon the court issued notice to the parties to appear on a given date to decide whether or not the application was barred by limitation. on the date fixed no one appeared on behalf of the judgment-debtors and the court held that the application was within time. this was on the 12th of january 1920 thereupon attachment issued, and on the 9th of april 1920 the judgment debtors took objection to the attachment on the ground, among others, that the application for execution was time-barred. the court below held, on the evidence, that the notice to the judgment debtors to appear on the 12th of january 1920, had been duly served on them and held that as they had not objected.....
Judgment:

1. This is an appeal in execution proceedings. A decree wag obtained as long ago as the 15th of September 1913 by the respondent, Musammat Umda Begum (the widow of a Muhammadan gentleman), against her so widow, step-son and step daughter. Various applications were made until we tome down to the present applications which was filed on the 1st of August 1919. The office reported that this application was time-barred. Thereupon the Court issued notice to the parties to appear on a given date to decide whether or not the application was barred by limitation. On the date fixed no one appeared on behalf of the judgment-debtors and the Court held that the application was within time. This was on the 12th of January 1920 Thereupon attachment issued, and on the 9th of April 1920 the judgment debtors took objection to the attachment on the ground, among others, that the application for execution was time-barred. The Court below held, on the evidence, that the notice to the judgment debtors to appear on the 12th of January 1920, had been duly served on them and held that as they had not objected order of the Court concluded the matter and it was no longer open to the judgment-debtors to contest this decision except by way of appeal. This is the point raised in appeal before us. We find on the evident that the judgment-debtors had notice appear on the 12th January 1920, and that they knew that the issue then to be decided by the Court was the question of limitation. That being so we think that their failure to oppose the application then precludes them afterwards. It is not a question, in our opinion, of res judicata at all It w a decision in the very litigation upon the same application. In our opinion the appeal fails and is dismissed with costs including in this Court fees on the higher scale.


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