Skip to content


Abdul Rafi Khan and ors. Vs. Maula Bakhsh - Court Judgment

LegalCrystal Citation
SubjectLimitation ;Property
CourtAllahabad
Decided On
Judge
Reported inAIR1915All320; (1915)ILR37All527; 29Ind.Cas.479
AppellantAbdul Rafi Khan and ors.
RespondentMaula Bakhsh
Cases ReferredMangal Sen v. Baldeo Prasad A.W.N.
Excerpt:
.....code (act v of 1908), order xxi, rule 12--execution--inventory of property attached not annexed to application--application, whether in accordance with law. - - the decree as already stated was passed on july 10th, 1906. the first application for execution was made in september 1909 and was struck off after the decree had been partly satisfied. the third application for execution was made on august 23rd, 1912, and was struck off on september 6th, 1913, the decree-holder having failed to comply with the order of the court requiring him to make certain amendments in the application. but the failure of the decree-holder to annex to the application an inventory of the property to be attached with a reasonably accurate description of the same as required by order xxi, rule 12, civil..........v. dulari kuar a.w.n. (1892) 3 this court held that an application for attachment of immoveable property in execution of a decree which did not contain the particulars required by section 237 of the code, of civil procedure of 1882, was not an application in accordance with law within the meaning of article 179, schedule ii, of the limitation act of 1877 and in mangal sen v. baldeo prasad a.w.n. (1892) 70 mahmood, j. held that an application for execution of a decree by attachment of moveable property of the iudgment-debtor unaccompanied by an inventory of the property sought to be attached was not an application in accordance with law within the meaning of article 179, schedule ii, of the limitation act of 1877. the learned vakil for the appellants has been unable to refer us to any.....
Judgment:

1. This is an appeal by the representatives of one Ali Bakhsh Khan deceased, who obtained a decree on July 10th, 1906, against an order of the Subordinate Judge of Azamgarh dismissing the appellants' application for execution on the ground that it was barred by limitation. The decree as already stated was passed on July 10th, 1906. The first application for execution was made in September 1909 and was struck off after the decree had been partly satisfied. The second application for execution was made on August 24th, 1910, and was ultimately struck off on March 24th, 1911. For the purposes of this appeal it may be assumed that the application of August 24th, 1910 was ah application made in accordance with law to the proper Court for execution of the decree. The third application for execution was made on August 23rd, 1912, and was struck off on September 6th, 1913, the decree-holder having failed to comply with the order of the Court requiring him to make certain amendments in the application. The fourth application for execution was made on June 4th, 1914, and it is against the order of the Couct dismissing the fourth application that this appeal has been brought. The question for decision in the appeal is whether the third application of August 23rd, 1913, was an application made in accordance with law to the proper Court for execution of the decree. When the application was presented, the office reported that there were many mistakes in columns 6, 7 and 8 of the application. It was also noticed that the prayer for relief was irregular. The prayer was that by means of attachment and sale of the property of the judgment-debtor, a list of which would be filed afterwards, the balance of the decree together with costs of the execution proceedings might be recovered. It has been held in many cases that it is not every defect or mistake in an application for execution which obliges the Court to hold that the application is not one made in accordance with law. Speaking generally, the Courts have set themselves to inquire whether an application in question is in substantial compliance with law. For the purposes of this appeal we may disregard the mistakes and defects in columns 6, 7 and 8 of the application. But the failure of the decree-holder to annex to the application an inventory of the property to be attached with a reasonably accurate description of the same as required by Order XXI, Rule 12, Civil Procedure Code, stands on a different footing. In Hira Lal v. Dulari Kuar A.W.N. (1892) 3 this Court held that an application for attachment of immoveable property in execution of a decree which did not contain the particulars required by Section 237 of the Code, of Civil Procedure of 1882, was not an application in accordance with law within the meaning of Article 179, Schedule II, of the Limitation Act of 1877 and in Mangal Sen v. Baldeo Prasad A.W.N. (1892) 70 Mahmood, J. held that an application for execution of a decree by attachment of moveable property of the iudgment-debtor unaccompanied by an Inventory of the property sought to be attached was not an application in accordance with law within the meaning of Article 179, Schedule II, of the Limitation Act of 1877. The learned Vakil for the appellants has been unable to refer us to any case in which these decisions have been disapproved. But he has referred us to several cases in which defective applications for execution have been amended beyond limitation and the Courts have held that the amendment related back to the date of the application. Such eases have no bearing on the present appeal. Here although the decree-holder was given time to amend his application, he did not amend it, and it is impossible for us some years afterwards to allow him to amend an application which was struck off on account of his failure to comply with the order of the Court requiring him to amend it. We must follow the decisions of this Court reported in the Weekly Notes for 1892, and hold that the application for execution put in on August 23rd, 1913, was not an application in accordance with law within the meaning of Article 182, Schedule I, of the Limitation Act of 1908 which governs the present case. If the application of 1913 is put out of the way, the present application of June 1914 is clearly barred by limitation as held by the Court below. The appeal fails and is dismissed with costs including fees in this Court on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //