Skip to content


Mungol Prashad Dichit Vs. Shama Kanto Lahory Chowdhry - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal708
AppellantMungol Prashad Dichit
RespondentShama Kanto Lahory Chowdhry
Cases ReferredBissessur Mullick v. Maharaja Dhiraj Mahatab Chund
Excerpt:
limitation - acknowledgment in writing of debt by judgment-debtor--decree expired--limitation acts (ix of 1871), section 20, schedule ii, article 167; (xv of 1877), section 19, schedule ii, article 179. - .....in the judgment of a division bench of this court in kally prosonna hazra v. heera lal mundle (b.l.r., sup. vol., 967; s.c., 10 w.r. (f.b.) 8), 'a liability to pay money for which a suit can be brought'.2. an objection is taken that the court cannot look behind the application of the 5th september 1874, as that was a bona fide application made as provided for in article 167 of scheduleii, act ix of 1871, and was accepted and acted upon by the court. but this objection is disposed of by the full bench ruling in bissessur mullick v. maharaja dhiraj mahatab chund (b.l.r., sup. vol. 967; s.c., 10 w.r. (f.b.) 8). a decree having been once dead, no proceeding by means of an application out of time could revive it.3. the appeal is dismissed with costs.prinsep, j.4. i am of the same.....
Judgment:

Morris, J.

1. Several questions have been raised, arising out of proceedings taken between the last and the next preceding application for execution, that is, between the 5th September 1874 and the 22nd September 1877. But the determination of these is unnecessary if, as has been pointed out, the decree which it is sought to execute was dead on the 5th September 1874 by reason of the previous application having been made on the 26th July 1871. It is, however, pointed out that the respondent, debtor, made an acknowledgment of the judgment-debt on the 30th November 1871, when he asked for two months' postponement of the sale in execution. And a contention is raised that this is such an acknowledgment in writing of the debt as is contemplated in Section 20, Act IX of 1871, and that, consequently, a new period of limitation runs from the date on which it is signed. The application for execution made on the 5th September 1874 brings this case under the provisions of Act IX of 1871 (see Section 4 of that Act). This being so, the acknowledgment in writing of the judgment-debt, dated the 30th November 1871, is not sufficient to save limitation. A consideration of the terms of Act IX of 1871, with the light thrown upon them by Act XIV of 1859, which precedes it, and by Act XV of 1877, which succeeds it, leads to the conclusion that the debt referred to in Section 20, Act IX of 1871, is not a judgment-debt, but, as explained in the judgment of a Division Bench of this Court in Kally Prosonna Hazra v. Heera Lal Mundle (B.L.R., Sup. Vol., 967; S.C., 10 W.R. (F.B.) 8), 'a liability to pay money for which a suit can be brought'.

2. An objection is taken that the Court cannot look behind the application of the 5th September 1874, as that was a bona fide application made as provided for in Article 167 of Scheduleii, Act IX of 1871, and was accepted and acted upon by the Court. But this objection is disposed of by the Full Bench Ruling in Bissessur Mullick v. Maharaja Dhiraj Mahatab Chund (B.L.R., Sup. Vol. 967; S.C., 10 W.R. (F.B.) 8). A decree having been once dead, no proceeding by means of an application out of time could revive it.

3. The appeal is dismissed with costs.

Prinsep, J.

4. I am of the same opinion. It appears to me that the first objection is disposed of by the judgment reported in Kally Prosonno Hazra v. Heera Lal Mundle (I.L.R., 2 Cal., 468). The second objection is disposed of by the Full Bench case in Bissessur Mullick v. Maharaja Dhiraj Mahatab Chund (B.L.R., Sup. Vol., 967; s.c, 10 W.R., (F.B.) 8).


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //