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Chundra Nath Gossami Vs. Gurroo Prosunno Ghose - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1895)ILR22Cal375
AppellantChundra Nath Gossami
RespondentGurroo Prosunno Ghose
Cases Referred and Collins v. Maula Baksh I.L.R.
Excerpt:
limitation act (xv of 1877), schedule ii, article 179, clause 4 - application for transfer of decree--civil procedure code (act xiv of 1882), section 223--step in aid of execution of a decree. - .....cannot be executed by the court which passed it, owing to the judgment-debtor not being personally subject to the jurisdiction of that court, or because of his having no property within it, the only course which the decree-holder could take to obtain satisfaction of his decree would be to have the decree transferred to a court in which execution could be had, and that must, we think, be taken to be a step, and a very necessary step, in aid of execution.2. we must, therefore, set aside the orders of both the lower courts, and hold that the execution is not barred.3. the appeal is decreed with costs.
Judgment:

Macpherson and Banerjee, JJ.

1. In this case both Courts have held that the execution is barred by limitation under Article 179 of the Limitation Act, and they have cited as an authority for the conclusion arrived at a case of Nilmony Singh Deo v. Biressur Banerjee I.L.R. 16 Cal. 744. It seems that the decree was passed on the 7th of August 1889 in the Golaghat Court, and on the 6th of August 1892 the decree-holder applied for a transfer of the decree to the Sibsagar Court on the ground that the judgment-debtor was residing there, and that the decree would have to be executed in that Court. This application was complied with, and on a formal application for execution being afterwards made, in the Sibsagar Court, that Court held that the execution was barred under the article referred to The question, therefore, is whether the application to transfer the decree to another Court under the circumstances stated in Section 223 is or is not a step in aid of execution within the meaning of Article 179. The case cited by the lower Courts and referred to above seems to us to have no application to the present case. It merely decided that an application for the transfer of a case was not an application for execution within the meaning of Section 230. On the other hand it was held in the cases of Latohman Pundeh v. Maddan Mohun Shye I.L.R. 6 Cal. 513, and Collins v. Maula Baksh I.L.R. 2 All. 284, that an application, such as that with which we are now dealing, was a step in aid of execution, and would be sufficient to keep the decree alive, and it seems difficult to understand how any different effect could be given to such application, because if a decree cannot be executed by the Court which passed it, owing to the judgment-debtor not being personally subject to the jurisdiction of that Court, or because of his having no property within it, the only course which the decree-holder could take to obtain satisfaction of his decree would be to have the decree transferred to a Court in which execution could be had, and that must, we think, be taken to be a step, and a very necessary step, in aid of execution.

2. We must, therefore, set aside the orders of both the lower Courts, and hold that the execution is not barred.

3. The appeal is decreed with costs.


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