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Sultan Hasan Mirza Vs. Srimati Nanki Bibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal241
AppellantSultan Hasan Mirza
RespondentSrimati Nanki Bibi
Excerpt:
- .....he declined to wake any order with regard to the moveables and he stated that the pleader for the decreeholder said that he would not pres3 for the attachment of the moveables and the learned judge stated that clearly the applicant was net entitled to realize the decretal amount by attachment of the moveables. now it seems to us that the application of 27th june 1921, in so far as it sought to attach the moveables, was a new application for execution within the provisions of section 48, civil p.c., and was clearly barred by time, and the only point we have got to decide is whether the application, so far as the second part of it is concerned, can be treated as being in continuance of the previous execution cases, and the conclusion we have come to is that we ought to so treat it and we.....
Judgment:

1. This is an appeal by the judgment-debtor in execution proceedings, The point urged before us is that under the provisions of Section 48, Civil P.C., the decree-holder's claim is barred by limitation. The material facts which it is necessary to state for the purpose of understanding the point which arises in this appeal are as follows:

2. The decree-holder obtained his decree on 30th May 1901, and in execution of that decree some decree of the Judicial Committee was attached in execution. There seem to have been various proceedings from time to time in execution in various years down to 1913 and 1914. In 1914 there was an appeal to this Court in respect of an order that had been made in favour of the decree-holder. The contention raised in that appeal was a similar contention to what is now raised before us, namely, that the decree-holder's rights were barred under the provisions of Section 48. The judgment of this Court was delivered in the year 1916 and it was there held that Section 48 had no application inasmuch as various proceedings that had been taken were not fresh proceedings in execution, but merely proceedings in continuation of a prior execution. Then, in 1918, a further application was made by the decree-holder to this Court. In that application the decree-holder asked that the proceedings should be treated as continuation of the execution cases which were therein mentioned and that an order should be passed for rateable distribution of the amount that might be realized from the decree of the Privy Council that had been attached. The order that was made on that application was passed on 10th September 1918 dismissing the application. The proceedings, as I have already stated, were for rateable distribution of the amounts received in respect of the decree of the Judicial Committee, and it seems to us that the reason for the order of 10th September 1918, and for the statement of the vakil who appeared for the decree-holder, namely, that no further steps remained to betaken, was the fact that at that time there was no fund available for rateable distribution realized by execution of the decree of the Judicial Committee. So far as the proceedings of 1918 are concerned one point has been made on behalf of the appellant, that these proceedings really are of no effect inamsuch as no notice of the proceedings was given to the judgment-debtor; but we think that there is nothing in this point because, as they were in fact proceedings in Continuation of the prior execution cases, no notice was necessary to the judgment-debtor under the provisions of Order 21, Rule 22. The provisions of that order only provide that notice should be given if an application is made more than a year after the decree or if it is made against the legal representative of a party to the decree and, therefore, if the proceedings of 1918 are to be treated as merely a continuation of the previous execution proceedings no notice to the judgment-debtor is necessary under the provisions of Order 21, Rule 22, and, in our opinion, the proceedings of 1918 were not fresh proceedings in execution but were proceedings in continuation of the, previous execution cases.

3. Then we come to the present application against the order in respect of which this appeal has been presented. That application was made on 27th June 1921; that is to say, within three years of the 1918 proceedings. The application of 27th June 1921 states that the receiver who had been appointed in respect of the decree of the Judicial Committee was dead and that there was no other receiver. The decree-holder asked that the heir of the judgment-debtor should be brought on the record and that notice should go to him under the provisions of Order 21, Rule 22. He further asked that the amount due should be realized by the attachment and sale of the judgment-debtor's moveables. He also asked that the petition should be put up with the records of the previous execution cases and that execution proceedings might be carried on in continuation thereof. The order against which this appeal is presented was passed on 18th March 1922 and the order is that the proceedings should be treated as an application in continuation of the previous execution cases and the learned Judge holds that on this basis the application was within time. He declined to wake any order with regard to the moveables and he stated that the pleader for the decreeholder said that he would not pres3 for the attachment of the moveables and the learned Judge stated that clearly the applicant was net entitled to realize the decretal amount by attachment of the moveables. Now it seems to us that the application of 27th June 1921, in so far as it sought to attach the moveables, was a new application for execution within the provisions of Section 48, Civil P.C., and was clearly barred by time, and the only point we have got to decide is whether the application, so far as the second part of it is concerned, can be treated as being in continuance of the previous execution cases, and the conclusion we have come to is that we ought to so treat it and we think that the Court below has rightly decided the point.

4. One further point remains, namely, with regard to the application for notice to the heir of the judgment-debtor. I have felt some little doubt that but the conclusion I have come to is that that application does not necessarily make it a new application for execution within the provisions of Section 48. The result, therefore, is that we think that the Court below was right in treating the application as one in continuance of the previous execution cases and that the appeal accordingly fails.

5. It is, of course unfortunate that these execution proceedings should be so long protracted and the decree obtained so long ago as May 1901 should still be un-satisfied and still be incapable of being put in execution. But we can only take the provisions of the law as we find them, and, for the reasons as already stated, we think that the order of the Court below is quite correct and that, despite the lapse of time, it is still open to the decree-holder to execute his decree in the manner in which execution is sought, that is to say, in continuance of the prior proceedings. The respondent is entitled to his costs in this appeal. Hearing-fee, two gold mohurs.


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