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Radha Ballav Khan and ors. Vs. Peary Lall Ghosh - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1932Cal19
AppellantRadha Ballav Khan and ors.
RespondentPeary Lall Ghosh
Cases ReferredMohesh Chandra Sadhu v. Jogendra Lal Sarkar
Excerpt:
- .....to time passed in it an order on 14th december 1923, in these words: 'it is useless to keep the execution case pending any longer. struck off.' the rehearing petition was dismissed by the subordinate judge on 19th december 1923. on 7th january 1924 the judgment-debtors took an appeal to the district judge, but it was eventually withdrawn by this court to itself and was dismissed on 21st june 1926. on 11th january 1929 the decree-holders filed the present application.3. the courts below have held that the application for execution is barrel. the decree-holders have appealed.4. the appellants have in the first place relied on the wording of order 21, rule 29 of the code, and on the decision of this court in the case of mahesh chandra sadhu v. jogendra lal sarkar : air1928cal222 in which.....
Judgment:

1. The portion of the appellants' application for execution with which we are concerned in the present appeal is in respect of their prayer for execution of an ex parte decree which was passed in their favour on the 11th December 1922. It was a decree for recovery of money from the judgment-debtors. On 4th January 1923 the judgment debtors applied for setting aside the decree. On the 9th April 1923 the appellants applied for execution, but, the judgment-debtors on 25th May 1923 obtained from the Court, in which their application for setting the decree aside was pending, an order in these terms:

I think that the execution proceedings should be stayed until the rehearing case is disposed of. Let the execution be stayed until further orders.

2. In compliance with this order the executing Court after adjourning the execution case from time to time passed in it an order on 14th December 1923, in these words: 'It is useless to keep the execution case pending any longer. Struck off.' The rehearing petition was dismissed by the Subordinate Judge on 19th December 1923. On 7th January 1924 the judgment-debtors took an appeal to the District Judge, but it was eventually withdrawn by this Court to itself and was dismissed on 21st June 1926. On 11th January 1929 the decree-holders filed the present application.

3. The Courts below have held that the application for execution is barrel. The decree-holders have appealed.

4. The appellants have in the first place relied on the wording of Order 21, Rule 29 of the Code, and on the decision of this Court in the case of Mahesh Chandra Sadhu v. Jogendra Lal Sarkar : AIR1928Cal222 in which the expression 'until the pending suit has been decided' appearing in that rule has bean interpreted as meaning 'until the claim in the pending suit has been finally decided after an exhaustion of all rights of appeal and not merely until a decree has been passed by the Court in which the suit is pending.'

5. We are not concerned here with the question whether by virtue of the power which that rule confers on a Court, it can make an order staying the execution proceedings until the pending suit has been finally decided after an exhaustion of all rights of appeal. If we were, we would as at present advised, be inclined to hold that it cannot and we would agree in the view taken in Bhagwan Kaur v. Harnam Kaur [1910] 82 P.R. 1910.

6. As we have said that question does not arise here. In the case of Mohesh Chandra Sadhu v. Jogendra Lal Sarkar : AIR1928Cal222 a Court having made an order

On the petition of the judgment-debtors let the execution be stayed under O.21 Rule 29, Civil P.C.

7. It was held that the order having been made under that rule operated to stay the execution until the claim in the suit had bean disposed of after exhaustion of all rights of appeal. From this interpretation of the law we think we must respectfully dissent. If in this case the order of the Court dated 25th May 1923 had been made with express reference to the provisions of Order 21, Rule 29, Civil P.C., it would have been necessary for us to refer the matter to a Full Bench dissenting as we do from the decision cited, but as the said order does not make any reference to that rule, we do not feel called upon to make such reference.

8. Taking the order of 25th May 1923 as it is, if it had merely ordered the execution case to be stayed until the rehearing case was disposed of we would have held that its operation was to be regarded as limited to the duration of the pendency of the rehearing case in that Court. But the order, as already stated, was coupled with a further and very important direction. It said: 'Let the execution be stayed until farther orders.' We have not been shown and we do not find that it is anybody's case that any such 'further orders' were ever passed by the Court. In . these circumstances the appellants cannot be blamed if they chose to wait until the proceedings relating to the rehearing case had been finally disposed of on appeal. They made their application within three years of the disposal of the appeal, and we accordingly hold that they were within time.

9. In this view of the matter it becomes unnecessary to consider the effect of the order of the executing Court dated 14th September 1923 by which the execution ease was 'struck off.' The appellants' contention in this respect was that the said order was not one contemplated or sanctioned by law and was merely a ministerial order made for the purpose of putting the case out of the file and it did not terminate the execution case which should be regarded as having been pending all the time since,, so that no application for its revival is necessary. The respondent on the other hand contended that oven so an application to take further steps was necessary, and such an application not having been made within the period prescribed by Article 181, Schedule 1, Bim. Act, the execution is barred. We say nothing as regards these contentions.

10. The appeal is allowed. The orders passed by the Courts below being set aside, the execution will be allowed to be proceeded with in accordance with law. No order for costs in the appeal.


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