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Lalraddi Mullick Vs. Kala Chand Bera - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal363
AppellantLalraddi Mullick
RespondentKala Chand Bera
Excerpt:
limitation (act xv of 1877), schedule ii. article 179 - execution of decree--step-in-aid of execution--application to sell attached property subject to a mortgage. - .....investigation before the court, and on the 10th of august 1882, it was allowed. at the time the claim was allowed the judgment-creditor through his pleader admitted the validity of the claim, and applied that the property under attachment might be sold subject to the mortgage, and that the proceeds realized, if any, ultra the mortgage debt, might be paid over to him in part satisfaction of his decree. that was on the 10th of august 1882. a small sum of money was realized from that sale, namely, rs. 16. on the 20th june 1885, another application for execution was made. what was done on that application does not appear. subsequently another application for execution was made on the 29th november 1886. then it was urged on behalf of the judgment-debtor that the application was barred by.....
Judgment:

1. It is a matter of regret that in this case no one appears for the respondent. The point to be decided is of some little importance, and perhaps of some little difficulty. The facts are these: The decree-holder, the appellant before us, obtained a decree on the 7th of November 1881. On the 22nd May 1882, he applied to execute that decree. A certain property of the judgment-debtor's was attached and put up for sale. While-the property was under attachment a claim was laid to it by a third party. That claim in due course came on for investigation before the Court, and on the 10th of August 1882, it was allowed. At the time the claim was allowed the judgment-creditor through his pleader admitted the validity of the claim, and applied that the property under attachment might be sold subject to the mortgage, and that the proceeds realized, if any, ultra the mortgage debt, might be paid over to him in part satisfaction of his decree. That was on the 10th of August 1882. A small sum of money was realized from that sale, namely, Rs. 16. On the 20th June 1885, another application for execution was made. What was done on that application does not appear. Subsequently another application for execution was made on the 29th November 1886. Then it was urged on behalf of the judgment-debtor that the application was barred by reason of more than three years having elapsed between the application of the 22nd May 1882 and the application of the 20th June 1885.

2. The Munsif decided in favour of the judgment-creditor. The District Judge has reversed that decision, and has upheld the objection of the judgment-debtor. The judgment of the lower appellate Court is a very short one, and is as follows: 'I think this appeal must be allowed. The decision in the Calcutta Law Reports, Volume XII, page 85, is directly against the decree-holder's contention. The execution is barred. I reverse the Munsif's decision with costs.' In is to be noted that the name of the case mentioned by the Judge is not stated; and on looking at XII, Calcutta Law Reports, page 85, we find there the end of a judgment of Her Majesty's Privy Council which has absolutely nothing whatever to do with the point now in dispute, What the case referred to by the District Judge is we are unable to say, (1).

3. We are of opinion that the application of the 10th August 1882, by the judgment-creditor to allow the sale of the mortgaged and attached property, subject to the mortgage of the third party, who was claimant, is, within the meaning of Article 179, Schedule II of the Limitation Act, a 'step in aid of execution of the decree,' and therefore we think that the judgment of the lower appellate Court is erroneous. We accordingly set it aside, and restore the decision of the Munsif. The execution will be allowed to proceed.

4. The appellant, the judgment-creditor, must have his costs in this and the lower appellate Court.


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