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Jaideo Prasad and ors. Vs. Ghasi - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in87Ind.Cas.745
AppellantJaideo Prasad and ors.
RespondentGhasi
Cases ReferredSheo Prasad v. Inder Bahadur Singh
Excerpt:
limitation act (ix of 1908), schedule i, article 182(5) - execution of decree--payment of process fees, whether application for step-in-aid of execution. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - the payment of this process fee must clearly be associated with the application for execution dated the 3rd of january 1921. the two things cannot be detached and treated as separate transactions......lower appellate court is correct.2. the question was a question of limitation. it seems that the decree-holder obtained a decree for possession of certain lands and also a decree for costs. on the 3rd of january 1921 he sought out execution of this decree by making an application (1) for delivery of possession; and (2) for attachment of certain property for the realization of his costs. on the 18th of january 1921 the decree-holder got delivery of possession by execution of a dakhalnama. on the 22nd january 1921 he was ordered to pay into court the necessary process fees for attachment and on that date he paid in a sum of rs. 3-12.3. it was reported after this that no property of the judgment-debtor was available for attachment and so the application was infructuous; on the 16th.....
Judgment:

Lindsay, J.

1. On the whole, after hearing the learned Counsel in this case, I have come to the conclusion that the decision of the lower Appellate Court is correct.

2. The question was a question of limitation. It seems that the decree-holder obtained a decree for possession of certain lands and also a decree for costs. On the 3rd of January 1921 he sought out execution of this decree by making an application (1) for delivery of possession; and (2) for attachment of certain property for the realization of his costs. On the 18th of January 1921 the decree-holder got delivery of possession by execution of a dakhalnama. On the 22nd January 1921 he was ordered to pay into Court the necessary process fees for attachment and on that date he paid in a sum of Rs. 3-12.

3. It was reported after this that no property of the judgment-debtor was available for attachment and so the application was infructuous; On the 16th January 1924 the decree-holder again applied for attachment of property in order to satisfy his decree for costs and he was met with the plea of limitation.

4. The last application for execution had been made undoubtedly on the 3rd of January 1921 and the application of the 16th January 1924 was, therefore, made more than three years afterwards. Prima facie, therefore, the application was barred.

5. It was contended, however, that the payment of the. process fee on the 22nd of January 1921 saved limitation. I do not think that argument can be maintained. The ruling in Thakur Ram v. Katwaru Ram 22 A. 358 : A.W.N. (1900) 108 : 9 Ind. Dec. (N.S.) 1272 seems tome to be clear authority against it, and there is also the other ruling of a Bench of this Court in Sheo Prasad v. Inder Bahadur Singh: 5 A.L.J. 258 : A.W.N. (1908)74 : 30 A. 179. It seems to me that the only previous application which was made for execution was the application of the 3rd of January 1921 and I cannot treat the payment of process fee on the 22nd of January 1921 as another and distinct application for execution or even as an application to take some step in aid of execution. The payment of this process fee must clearly be associated with the application for execution dated the 3rd of January 1921. The two things cannot be detached and treated as separate transactions.

6. For these reasons I think the judgment-of the Court below must be maintained and I dismiss this appeal under Order XLI, Rule 11, C.P.C.


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