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Kunhi Mannan Vs. Seshagiri Bhakthan - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Judge
Reported in(1882)ILR5Mad141
AppellantKunhi Mannan
RespondentSeshagiri Bhakthan
Cases ReferredChunder Coomar Roy v. Bhogobaity Prosonno Roy I.L.R.
Excerpt:
limitation act, schedule ii, section 179, clause 4 - civil procedure code, sections 230, 238, 248--execution of decree, step in aid of. - .....me that we ought to uphold the order made and dismiss this appeal. the application to the court to obtain a copy of a diary order, certifying that a copy of the revenue register of the properties against which the decree-holder desired to execute his decree was necessary to enable him to do so was, i think, an application to the court to take some step in aid of the execution of the decree. he required the copy of the register, because without it he could not execute the decree. he required that the court should certify that such a copy was necessary, because, without such certificate from a court, revenue officers, as a matter of fact, refuse, though they ought not to refuse, to give copies of documents.2. the only question seems to be whether such an application can be said to be made.....
Judgment:

Innes, J.

1. It appears to me that we ought to uphold the order made and dismiss this appeal. The application to the Court to obtain a copy of a diary order, certifying that a copy of the Revenue Register of the properties against which the decree-holder desired to execute his decree was necessary to enable him to do so was, I think, an application to the Court to take some step in aid of the execution of the decree. He required the copy of the register, because without it he could not execute the decree. He required that the Court should certify that such a copy was necessary, because, without such certificate from a Court, Revenue officers, as a matter of fact, refuse, though they ought not to refuse, to give copies of documents.

2. The only question seems to be whether such an application can be said to be made in accordance with law to the proper Court. It is possible that, by incessant applications to the Revenue authorities, the decree-holder might have obtained a copy of the register without applying to the Court for a certificate. But, in acting as he did, he took the course most likely to enable him to accomplish his purpose of taking out execution with promptitude. As the production of the copy of the register was a necessary preliminary to execution and the application he made to the Subordinate Court would enable him to obtain it, I think that Court was a proper Court in the sense of Article 179, Schedule II of the Limitation Act, and that the present application is consequently not barred. The right to execute a decree has been much curtailed by the provisions of Section 230 of the Civil Procedure Code, and the provisions of the Limitation Act should be construed as far as possible so as to prevent the defeat of bond fide endeavours to secure the fruits of a decree once obtained. In Bipro Doss v. Chunder Seekur 7 W.R. 521 it was held under Act XIV of 1859 that even an opposition to an appeal was an act done for the purpose of keeping the original judgment in force within the meaning of the Act. Now, the opposition to an appeal would take place in the Appellate Court which is not the Court charged with the execution of the decree, and the Act, therefore, would be of even a more indirect character than the application in the present case.

3. I agree with the observations in Chunder Coomar Roy v. Bhogobaity Prosonno Roy I.L.R. 3 Cal. 238 that any application in furtherance of an application to put a decree into execution may be held to be an application to enforce the decree. I think there are abundant reasons why such an application should be regarded as an application made in accordance with law to the proper Court to take a step in aid of execution, and I would dismiss the appeal with costs.

Muttusami Ayyar, J.

4. At first I felt considerable doubt whether this application was not barred.

5. Section 238 of Act X of 1877 enacts that, when land is registered in the Collector's Office, the application for its attachment shall be accompanied by an extract from the register of such office, and in the case before us, the judgment-creditor applied, on the 22nd October 1880, to the Court that passed the decree for a certificate that a copy of the Revenue Registry of the land was necessary, in order to enable him to obtain such copy from the Collector's Office, and thereupon to execute the decree by attaching the land.

6. The question for decision is whether this application is a step in aid of execution within the meaning of Clause 4, Article 179, Second Schedule of Act XV of 1877. At the hearing of the appeal, I doubted whether the step in aid of execution was not intended to be an application for some coercive process in actual enforcement of the decree, and whether it included an application which was in the nature of a mere preparation to apply for execution; but, on further consideration, I concur in the opinion of Mr. Justice Innes. Clause 4 refers first to an application for actual execution, and then to a step in aid of execution, and this leads to the inference that it may be some preliminary proceeding prior to actual execution. And this view is confirmed by Clause 5, which mentions as sufficient to save the statute, a notice under Section 248 of the Code of Civil Procedure to show cause why a decree should not be executed, though it is only a preliminary proceeding. Further, the latter part of Section 230 restrains judgment-creditors from keeping alive their decrees beyond twelve years by fruitless steps in aid of execution without earnestly endeavouring to obtain satisfaction of their decrees. There is also nothing on the record to show that a certificate such as was applied for was not necessary to obtain a copy of the Revenue Register, while the application for attachment must be accompanied with it under Section 238. As the Act of Limitation is one which takes away the remedy and ought to be construed in case of doubt so as to advance the remedy, I am also of opinion that this appeal must be dismissed with costs.


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