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Venkataramanamma Vs. Purushottam - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1901)ILR24Mad188; (1900)10MLJ342
AppellantVenkataramanamma
RespondentPurushottam
Cases ReferredChowdhry Parkash Ram Das v. Kali Puddo Banerjee I.L.R.
Excerpt:
limitation act - act xv of 1877, schedule ii, article 179--application for execution--application to take a step-in-aid of execution--distinction. - 1. the facts of this cage are briefly as follows: on the 4th november 1895, the decree-holder applied to the court; 'to attach and get' a sum of money belonging to the judgment-debtor, but which was in the hands of the salt department. the application did not ask that the money should be paid to the decree-holder. an order purporting to be under section 272, civil procedure code, was made on the 19th november 1895.2. on the 29th april 1898, the treasury deputy collector informed the court that there was a balance of rs. 62-14-11 due to the judgment debtor.3. on the 12th december 1898 the present application was put in by the decree-holder asking the court to send for the rs. 62-14-11 and pay it to him.3. the question is whether this application is barred by article 179, schedule ii, of.....
Judgment:

1. The facts of this cage are briefly as follows: On the 4th November 1895, the decree-holder applied to the Court; 'to attach and get' a sum of money belonging to the judgment-debtor, but which was in the hands of the Salt Department. The application did not ask that the money should be paid to the decree-holder. An order purporting to be under Section 272, Civil Procedure Code, was made on the 19th November 1895.

2. On the 29th April 1898, the Treasury Deputy Collector informed the Court that there was a balance of Rs. 62-14-11 due to the judgment debtor.

3. On the 12th December 1898 the present application was put in by the decree-holder asking the Court to send for the Rs. 62-14-11 and pay it to him.

3. The question is whether this application is barred by Article 179, Schedule II, of the Limitation Act, having been made more than three years after the application of the 4th November 1895.

4. The District Judge decided that it was not barred, and we think his decision is right.

5. We do not think that Article 179 applies to this case. That article says that an application for the execution of a decree must be made within three years from the date of the last application for execution or from the date of the last application to take a step-in-aid of execution. A distinction is made between an application to execute a decree and an application to take a step-in-aid of execution. An application to execute a decree means an application within the terms of Section 235, Civil Procedure Code, that is to say, an application setting the Court in motion to execute a decree in any manner set out in Clause (j) of the section e.g., in this case by attaching the property; but having so set the Court in motion, any further application during the continuance of the same proceeding is an application to take a step-in-aid of execution within the terms of Clause 4 in the last column of Article 179; Chowdhry Parkash Ram Das v. Kali Puddo Banerjee I.L.R. 17 Calc. 53. The application to take a step-in-aid of execution may be made at any time so far as Article 179 is concerned, for that article imposes no limitation on such applications. That article only imposes a limitation on an application for execution. In the present case the application for execution is the application of the 4th November 1895. The attachment then ordered continued in force on the 12th December 1898 on which date the decree-holder made a further application, viz., to pay the money to him. We think that this application must be regarded not as an application for execution, which means such an application as would be made under Section 235, Civil Procedure Code, but rather as an application to take a step-in-aid of execution, i.e., an application to the Court to take the further steps contemplated by the Code in order to satisfy the decree-holder's claim out of the property held under attachment by the Court in pursuance of the application for execution made on the 4th November 1895.

6. We look upon the application of December 1898 merely as subsidiary to the application for execution made on the 4th November 1895. This application did not in terms ask for the delivery of the money attached to the decree-holder, but such a prayer is not required by Section 235, Civil Procedure Code, as in all cases of attachment such a prayer is implied and the Court is empowered by subsequent sections of the Code to deal with the property attached by sale or otherwise. It may be that Article 178 of the second schedule of the Limitation Act imposes a limitation in regard to an application to take a step-in-aid of execution, but that article is no bar in the present case, because the right to apply for the payment of the money did not accrue until April 1898, when the amount available for payment was first ascertained.

7. We dismiss this appeal with costs.


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