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Madan Mohun Dey Vs. Ganga Chandra Roy and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.189
AppellantMadan Mohun Dey
RespondentGanga Chandra Roy and anr.
Cases ReferredRaj Behari Chakravarti v. Kalihar Gupta
Excerpt:
execution of decree - limitation act (xv of 1877), schedule 11, article 179, clause (4)--application to court to lake step-in-aid of execution--deposit of nazir's travelling allowance, if saves time--time runs from date of application not from date of order. - - in our opinion, this contention is not well-founded and must be overruled. there it was ruled by the learned judges of the madras high court that the presentation of what is called a 'batta memorandum' is sufficient to bring a case within clause (4) of article 179. we are unable, however, to accept this view as well-founded on principle......even though it is pointed out that the court was closed from the 9th to the 14fch april 1909. the decree-holder, however, seeks to remove the bar of limitation by reference to a payment of travelling expenses of the nazir made by him on the 12th april 1906. it appears that in the application of the 6th april 1906, the decree-holder had prayed that a writ might issue for the attachment of the moveable properties of the judgment-debtors and that the nazir might be deputed for the purpose. the court thereupon made a conditional order and directed the decree-holder to deposit the travelling expenses of the nazir. this deposit was made on the 12th april 1906. the learned vakil for the decree-holder contends, upon the authority of the decisions in radha prosad singh v. sundar lal 9 c.p 644.....
Judgment:

1. This appeal is directed against, an order by which the Court below has dismissed an application for execution of a decree made on the 21st June 1893, as barred by limitation. The previous application was made on the 6th April 1906. The present application was presented on the 15th April 1906. It is, therefore, prima facie, barred by limitation, even though it is pointed out that the Court was closed from the 9th to the 14fch April 1909. The decree-holder, however, seeks to remove the bar of limitation by reference to a payment of travelling expenses of the Nazir made by him on the 12th April 1906. It appears that in the application of the 6th April 1906, the decree-holder had prayed that a writ might issue for the attachment of the moveable properties of the judgment-debtors and that the Nazir might be deputed for the purpose. The Court thereupon made a conditional order and directed the decree-holder to deposit the travelling expenses of the Nazir. This deposit was made on the 12th April 1906. The learned Vakil for the decree-holder contends, upon the authority of the decisions in Radha Prosad Singh v. Sundar Lal 9 C.P 644 and Vijaraghavalu Naidu v. Srinivasalu Naidu 28 M.K 399, that Clause (4) of Article 179 of the Second Schedule of the Limitation Act saves the application from the bar of limitation. In our opinion, this contention is not well-founded and must be overruled.

2. In order to bring a case within Clause (4) of Article 179 it has to be shown by the decree-holder that he has applied in accordance with law to the proper Court to take some step-in-aid of execution of the decree. The learned Vakil for the appellant does not dispute that no written application was made on the 12th April 1906, when the travelling expenses were deposited. But he argues that it may be assumed that on that date an oral application was made on behalf of the decree-holder and the Court was invited to entrust the writ of attachment to the Nazir for execution. This argument is ingenious but obviously unsound. The decision in Radha Prosad Singh v. Sundur Lal 9 C.P 644 no doubt, lays down that the deposit of Nazir's fees is sufficient to bring a case within Clause (4) of Article 179, because when the decree-holder makes such a deposit he takes a step-in-aid of execution of the decree. This decision, however, as was explained in Thahur Ram v. Katwaree Ram 22 A.P 358 does not give effect to the plain language of Clause (4) of Article 179. To bring a case within that Clause it is not sufficient for the decree-holder to show that he has taken a step-in-aid of execution of the decree: he has to establish that he has applied to the Court to take some step-in-aid of execution. The mere payment of Nazir's fees cannot plainly by itself bring the case within Clause (4) of Article 179. We may further point out that the view taken in the case of Radha Prosad v. Sundar Lal 9 C.P 644 is contrary to that adopted in Toree Mahomed v. Mahomed Mabood 9 C.P 730 : 13 C.L.R. 91 and Annnda Mohan Roy v. Hara Sundari 23 C.P 196. In so far as the decision in Vijaraghavalu Naidu v. Srinivasalu Naidu 28 M.P 399 is concerned, it may be conceded that it does support the contention of the appellant. There it was ruled by the learned Judges of the Madras High Court that the presentation of what is called a 'batta memorandum' is sufficient to bring a case within Clause (4) of Article 179. We are unable, however, to accept this view as well-founded on principle. If an application has already been made for the issue of a sale proclamation, the presentation of a subsequent application for the same purpose when the fees are paid, is not, in our opinion, sufficient to extend the period of limitation by virtue of Clause (4) of Article 179. No doubt, as has been ruled by this Court in Ambica Pershad v. Sardhari Lal 10 C.P 851 an application by a decree holder for the issue of a sale proclamation is an application by him to the proper Court to take some step-in-aid of execution of the decree. But the mere payment of fees for the issue of a sale proclamation pursuant to an order of the Court on a previous application for the issue of the sale proclamation does not extend the time under Clause 4 of Article 179. We may also observe that the view taken in Vijiaraghivalu Naidu v. Srinivasalu Naidu 28 M.P 399 has not been accepted in Sheo Prosad v. Indar Bahadur 30 A.P 179 : 5 A.L.J. 258 : (1908) A.W.N. 74. In the case before us, there was an application for the issue of a writ of attachment on the 6th April 190S. The Court, as we have already explained, directed the decree-holder to deposit the travelling expenses of the Nazir. This order was carried out on the 12th April 1906. The result was that the conditional order of the 6th April 1906, was perfected on the 12th April 1906. But it cannot be argued that the effect of this was to make time run from the 12th April 1906. As was ruled in Raj Behari Chakravarti v. Kalihar Gupta 10 C.L.J. 479 : 3 Ind. Cas. 336 time runs from the date of the. presentation of the application and not, from the date on which the application is disposed of by the Court. In the case before us, the application was made on the 6th April 1906 and time ran from that date.

3. The result, therefore, is that t he order made by the Court below is affirmed and this appeal dismissed with costs. We assess the hearing fee at two gold mohurs.


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