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Mt. Bittee Vs. Kanhaiya Lal Misir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All510; 94Ind.Cas.869
AppellantMt. Bittee
RespondentKanhaiya Lal Misir
Cases ReferredQamaruddin Ahmad v. Jawahar Lal
Excerpt:
- - 2. subsequently, on the 8th of june 1918, sheo shanker, the original decree-holder filed an application stating that he bad transferred the decree to the applicant who should be allowed to execute it. if that was its real conclusion, it ought to have dismissed the application on the ground that kanhaiya lal misir bad no locus standi to execute the decree. this time he did not file a copy of the decree along with this application, and though the court on several occasions granted him time to file a copy he failed to do so:.....but no delivery of possession could he made. on the 2nd october 1916 sheo shanker executed a sale-deed in favour of the present respondent. on the strength of this sale deed sheo shanker's vendee filed an application for execution on the 9th of january 1918. notice was ordered to be issued on this application and was served on the judgment-debtor, mt. bittee. on the 10th of may 1918 she filed objections to the execution. she did not plead that the application of the 9th of january 1918 was in any way barred by time, nor did she plead that kanhaiya lal misir was not a transferee of the decree and was not entitled to execute it. the only objection which she raised was that he could not execute the decree without first paying her rs. 30 allowed under the partition decree.2......
Judgment:

Sulaiman, J.

1. This is a judgment-debtor's appeal arising out of certain execution proceedings. In 1913 a final decree for partition was passed in favour of Sheo Shanker the vendor of the contesting respondent. Applications for execution were made by Sheo Shanker in 1914 and in subsequent years, but no delivery of possession could he made. On the 2nd October 1916 Sheo Shanker executed a sale-deed in favour of the present respondent. On the strength of this sale deed Sheo Shanker's vendee filed an application for execution on the 9th of January 1918. Notice was ordered to be issued on this application and was served on the judgment-debtor, Mt. Bittee. On the 10th of May 1918 she filed objections to the execution. She did not plead that the application of the 9th of January 1918 was in any way barred by time, nor did she plead that Kanhaiya Lal Misir was not a transferee of the decree and was not entitled to execute it. The only objection which she raised was that he could not execute the decree without first paying her Rs. 30 allowed under the partition decree.

2. Subsequently, on the 8th of June 1918, Sheo Shanker, the original decree-holder filed an application stating that he bad transferred the decree to the applicant who should be allowed to execute it. On the 15th June 1918 the application came up for disposal. The Court looked at the copy of the sale deed filed by the applicant and noticed that the number of the decree mentioned in it was slightly different from the number of the decree sought to be executed. The Court thought that apparently the transfer was of some other decree. If that was its real conclusion, it ought to have dismissed the application on the ground that Kanhaiya Lal Misir bad no locus standi to execute the decree. The Court however, did not dismiss the application nor rejected it, nor did it even strike it off. It was simply ordered to be 'filed'.

3. On the 6th of September 1918 Kanhaiya Lal got a second registered document executed in which the mistake in the previous sale-deed was corrected. He then filed a fresh application on the 2nd of May 1921 for execution. This time he did not file a copy of the decree along with this application, and though the Court on several occasions granted him time to file a copy he failed to do so: His application was ultimately struck off. He then filed another application on the 15th of January 1924 which also was struck off. Lastly he filed the present application on the 21st of May 1924 for execution. The judgment-debtor filed objections to the execution. The Courts below have overruled those objections and have allowed the execution to proceed. The judgment-debtor has come up in second appeal. The learned Counsel for the appellant had not urged any plea of want of right in the respondent to execute the decree, nor has he urged any plea of res judicata. The only plea urged before me is that the present application is barred by time.

4. The argument for the appellant is that there being no valid sale-deed of the decree on the 9th of January 1918, Kanhaiya Lal had no locus standi to make the application. His application therefore was not according to law. It is further urged that in any case the Court by its order dated the 15th of June 1918 decided that the transfer was of a different decree. It is then urged that if the application of the 9th of January 1918 was itself not according to law the subsequent applications cannot be deemed to be applications within time or according to law. The Courts below have taken the view that there was a mere mistake in the sale-deed which was subsequently corrected and that it was the intention of the parties that the decree should be transferred. The learned Judge has relied on the case of Salekhan v. Vishvanath (1911) 13 Bom LR 22 and held that a mistake of that kind was a technical one and could be cured subsequently. If however the order of the 15th of June 1918 were to be taken to be an adjudication that there was no transfer of the decree in favour of Kanhaiya Lal, then there would be difficulty in the way of the respondent in saying that this application of the 9th of January 1918 in spite of that adjudication must be deemed to have been in accordance was law. The Court however did not pass any formal order allowing the objections nor did it pass any formal order dismissing the application. The order that it should be filed whatever the true intention might have been was meaningless.

5. I have already said that the plea of res judicata is not urged before me. It is therefore impossible to say that the Courts below were precluded from holding that the original sale-dead was in reality a sale-deed of the decree though a mistake crept in its number. That being so it cannot be doubted that the application of the 9th of January 1918 was not incompetent.

6. That application having been ordered to be simply 'filed' and not having been struck off owing to a default of the decree-holder must be deemed to have been still pending when the application of the 2nd of May 1921 was filed. Although this last application purported to be a fresh application for execution it can be treated as an application for revival, as has bean done in several cases. I may only mention the case of Qamaruddin Ahmad v. Jawahar Lal (1905) 27 All 334, This application for revival would then at the very least become a step-in-aid of execution. The application of the 15th of January 1924 would then be within three years of this last step and that application in its turn would make the present application within time.

7. I am therefore bound to hold that the application was not barred by time and I accordingly dismiss this appeal with costs.


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