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Jogendra Chandra Roy Vs. Shyam Das - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1909)ILR36Cal543
AppellantJogendra Chandra Roy
RespondentShyam Das
Cases ReferredBalkishoon v. Mahommed Tamaz Allee
Excerpt:
limitation act (xv of 1877), schedule ii, article 180 - 'revivor of judgment,' meaning and effect of--scire facias, analysis of--legislature, its power to alter laws, and correct errors of courts and significance of its silence--civil procedure code (xiv of 1882), sections 230, 234--formal application for substitution of deceased decree-holder, not absolutely necessary--two codes, not to be so construed as to be conflicting--civil procedure code (v of 1908), section 48. - mookerjee and carnduff, jj.1. this is an appeal on behalf of the judgment-debtor against an order for execution of a decree obtained by the respondents decree-holders against him on the 16th december 1891 on the original side of this court. the decree was originally in favour of balkissen das shyam das, and mathura das and was for a sum of rs. 11 044 with interest. on the 2nd january 1892, execution proceedings were instituted, in the course of which a sum of rs. 824 was realised. on the 30th january 1897, a second application for execution was made and the decree-holder applied for attachment of the interest of the judgment-debtor in a decree passed in another suit. notice was served on the judgment-debtor and an order for attachment was made. the judgment-debtor under that decree,.....
Judgment:

Mookerjee and Carnduff, JJ.

1. This is an appeal on behalf of the judgment-debtor against an order for execution of a decree obtained by the respondents decree-holders against him on the 16th December 1891 on the Original Side of this Court. The decree was originally in favour of Balkissen Das Shyam Das, and Mathura Das and was for a sum of Rs. 11 044 with interest. On the 2nd January 1892, execution proceedings were instituted, in the course of which a sum of Rs. 824 was realised. On the 30th January 1897, a second application for execution was made and the decree-holder applied for attachment of the interest of the judgment-debtor in a decree passed in another suit. Notice was served on the judgment-debtor and an order for attachment was made. The judgment-debtor under that decree, however, was an insolvent and obtained his final discharge; no further proceedings were therefore, taken by the respondents on their application for execution. Subsequently Balkissen Das, one of the decree-holders, died, and on the 1st January 1903, the remaining decree-holders, one of whom had by survivorship acquired the interest of the deceased decree-holder applied to the Original Side of this Court for transfer of the decree to the Court of the District Judge of Hooghly, within the jurisdiction of which Court, it was alleged, the judgment-debtor resided and possessed properties. Notice was issued under Section 248, Civil Procedure Code of 1882, upon the judgment-debtor on the 31st January 1903 and as no cause was shown on his behalf, an order was made on the 10th August 1906 for the issue of the necessary certificate. The decree was then transmitted to the Court of the Subordinate Judge, and on the 17th August 1906 the decree-holders presented in his Court the usual application for execution. Notice was issued upon the judgment-debtor who appeared on the 8th December 1906 and objected to the execution substantially on the ground that the decree under execution was barred by limitation and also alleged that the property sought to be attached belonged to a religious endowment and was not liable to be sold in execution. The Subordinate Judge overruled these objections and ordered execution to proceed. The judgment-debtor has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been challenged on four grounds, namely, first, that as the judgment-debtor has been declared an insolvent and all his properties have been vested in the Official Assignee, execution cannot proceed; secondly, that the application for execution is barred by limitation under Article 180 of the second schedule of the Limitation Act of 1877; thirdly, that as one of the decree-holders had died, the other decree-holders could not proceed with execution till they had made an application for substitution, which if made could be entertained only by the High Court, and fourthly, that as the decree-holders had in the second execution proceedings obtained an order for attachment of a decree in which the judgment-debtor was the decree-holder and as by reason of their default the interest of the judgment-debtor in that decree had been extinguished, the decree-holders should not be allowed to proceed with the present execution. We shall consider these objections in the order in which we have stated them.

2. In support of his first ground, the learned vakil for the appellant has invited our attention to an order made by this Court in its Insolvency jurisdiction on the 9th April 1878 by which the appellant Jogendra Chandra Roy was declared an insolvent and his assets were vested, in the Official Assignee. There are no materials, however, on the record to show what has happened since 1878. Nor is there anything to show that the appellant has obtained his final discharge. This particular ground was not urged in the Court below, and all we need observe, is that upon the materials on the present record, the appellant has not 'satisfied us that he is entitled to protection from execution under the decree obtained by the respondents. The first objection taken on behalf of the appellant must consequently be overruled.

3. The second ground urged on behalf of the appellant is that the application for execution is barred by limitation under Article 180 of the Limitation Act of 1877. That Article provides that an application to enforce a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction must be made within 12 years from the date when a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right, provided that (we quote so much only of the section as has any application to the case before us) when the judgment, decree or order has been revived, the twelve years shall be computed from the date of such revivor. The learned vakil for the appellant argued that there is no provision under the present law for the revivor of a judgment, decree or order, and that in any event, there has not been in the present case such a revivor as is contemplated by the Limitation Act. He candidly conceded, however, that his contention was opposed to a series of decisions of this Court, namely, the cases of Ashutosh Dutt v. Doorga Churn Chatter jee (1880) I.L.R. 6 Calc. 504, Futteh Narain Chowdhry v. Chundrabati Chowdhrain (1892) I.L.R. 20 Calc. 551, Suja Hossein v. Monohur Das (1896) I.L.R. 24 Calc. 244. It was also not disputed by him on behalf of the appellant that the rule laid down in these cases had been accepted as good law by the Madras High Court in Ganapathi v. Balasundara (1884) I.L.R. 7 Mad. 540 and by the Allahabad High Court in Umrao Singh v. Lachmi Narain (1904) I.L.R. 26 All. 361 and in Beni Madho v. Shiva Narain (1907) 4 All. L. J 405. The learned vakil for the appellant, however, strenuously contended upon the authority of the observations of Mr. Justice Wilson in the case of Tincowrie Dawn v. Debendro Nath Mookerjee (1890) I.L.R. 17 Calc. 491 that those decisions were erroneous; and he also placed reliance, to some extent, upon the cases of Monahar Das v. Futteh Chand (1903) I.L.R. 30 Calc. 979 and Suja Hossein v. Manohur Das (1895) I.L.R. 22 Calc 921 which latter, however, was subsequently set aside on review, the judgment on rehearing Suja v. Monohur(1896) I.L.R. 24 Calc. 244 negativing the contention of the present appellant. In this state of the authorities, the learned vakil for the appellant invited us to consider the matter upon principle in view of a possible reference to a Pull Bench.

4. Article 180, to the terms of which we have already referred, provides that the period of 12 years is to be computed from the date of revivor of the judgment, decree or order sought to be enforced. The term revivor is nowhere defined in the Limitation Act, nor is any definition of the term given either in the General Clauses Act or in the Code of Civil Procedure. As pointed out, however, by Mr. Justice White in Ashutosh Dutt v. Doorga Churn Chatterjee (1880) I.L.R. 6 Calc. 504 the provisions of Article 180 are a reproduction of those of Article 169 of the Limitation Act of 1871, which again were based upon Section 19 of the Limitation Act of 1859. At the time when the Limitation Act of 1859 was passed, there was a procedure for revivor of judgment on the Original Side of this Court. The 195th of the Rules of 1851 on the Plea Side of the Supreme Court recognized the principle that execution could not issue upon judgments more than a year old without issuing out a writ of scire facias against the defendant; and a reference to the Plea Rules of 1837 (Rules and Orders of the Supreme Court by Smoultand Ryan, 1839, Vol. II, page 93) shows that the rule in question had been in force for many years and had been introduced into the Chartered High Courts from the English law which governed its operation and effects. There can be no question, therefore, that when the Limitation Act of 1859 was passed by the Legislature, proceedings for revivor of judgment were matters of common occurrence and the Legislature had undoubtedly this procedure in view when they laid down in Section 19 of Act XIV of 1859 that the period of twelve years was to run from the date of revivor. When, however, the Limitation Acts of 1871 and 1877 were passed, although the term 'revivor' was reproduced, the writ of scire facias had become obsolete and its place had been taken by the procedure contained in Sections 215 and 216 of Act VIII of 1859 which were replaced by Sections 245 and 248 of the Codes of 1877 and 1882. The question therefore arises, what operation had the Legislature in view in 1871 and 1877 when they spoke of revivor of judgment in the Limitation Act. It would be unreasonable to assume that the Legislature contemplated a contingency which could no longer possibly arise. It is consequently necessary to examine for a moment the true nature of the process of revivor of judgment by the writ of scire facias and to determine whether there is anything in the present law which substantially corresponds to that process. Now, it is a matter of common learning that scire facias was 'a writ founded on some matter of' record, as recognizance or judgment, on which it lies to obtain execution or for other purposes as to repeal Letters Patent, hear-errors, etc. In general, it was a judicial writ issuing out of a Court where the record was, because the defendant might plead thereto; it was considered in law an action; therefore a release of all actions was a good bar to scire facias ': Tidds' Practice, 1828, Chap. 43, page 1090. In other words, a scire facias was a judicial writ issued for the purpose of substantiating and carrying into effect an antecedent judgment. As pointed out in Freeman on Judgments, Vol. II, Section 442, before a judgment was either satisfied by payment or barred by lapse of time, it might become temporarily inoperativa so far as the right to issue execution was concerned, and so continue until something was done by which such right was revived; in this condition it was usually called a dormant judgment. This dormancy in judgments was at common law usually created either by a change in the parties, plaintiff or defendant, or by the lapse of time without the issuing of execution. There were also cases in which execution was to be issued in certain contingencies only, and in which it became necessary to establish the existence of the contingency before the writ could be regularly issued out. So the judgment might have been satisfied through fraud or mistake or by execution upon property not belonging to the defendant, and it might, therefore, be necessary to set aside the satisfaction and to obtain leave to issue further execution. When from any cause it became necessary to apply to a Court for a revivor of the right to issue execution, the remedy of the plaintiff was by a scire facias. As was very clearly put in Brown v. Harley (1848) 2 Fla. 164 'a scire facias to revive a judgment is not an original but a judicial writ founded on some matter of record, to enforce execution of it; and properly speaking, is only the continuation of an action, a step leading to the execution of a judgment already obtained and enforcing the original demand for which the action was brought. It creates nothing anew but may be said to reanimate that which before had existence but whose vital powers and faculties are, as it were, suspended and without its statutory influence, would be lost.' The objects of a scire facias therefore were: (i) to revive an ordinary judgment between the parties thereto, (ii). to obtain execution where a new. party is to be charged or benefited, (iii) to obtain execution on a contingent judgment upon the happening of the contingency. As between the original parties, a scire facias became necessary, (i) where by the fault of the plaintiff no execution had issued out within a year and a day after the entry of the judgment, (ii) where at any time the judgment seemed to be satisfied when in fact it remained wholly or partly unpaid. The cases in which it became necessary to prosecute a scire facias to obtain the benefit of an execution for or against a new party, arose when a change of parties occurred through the death, marriage or bankruptcy of one of the parties: see Freeman on Executions, Vol. I, Sections 27, 28, 53, 54, 83, 84 and 85. The writ was next served, and upon return made, if any one appeared in response to the writ, he would be heard. It is unnecessary to consider what might be pleaded by the defendant either in bar or in abatement, but it may be generally stated that no ground of defence anterior to the old judgment sought to be enforced could be brought forward, just as no cause of action beyond the old judgment could be asserted and no relief beyond what was embraced therein obtained. Finally, the judgment entered upon the scire facias would be simply that the plaintiff will have execution for the judgment mentioned in the said scire facias and costs: Freeman on Executions, Vol. I, Section 92(a). The substance of the matter, so far as we are concerned, may therefore be thus stated: a scire facias is a judicial writ founded on some matter of record and having for its object the prevention of undue surprise by interposing itself as a warning between judgment and execution wherever a new party is to be charged or benefited by such execution, whenever such execution is contingent, after judgment, on the existence of certain circumstances to be first proved by the party charging; and lastly, whenever execution has been delayed beyond the specified period (a year and a day under the common law) after the judgment was signed, that delay not arising from the party charged: Bingham on Judgments and Execution, page 122; Freeman on Execution, Vol. I, Section 81,

5. If now we bear in mind the essential features of a writ of scire facias and of the result to be gained by a recourse to it, it is by no means difficult to identify it substantially with the procedure embodied in Section 248 of the Code of Civil Procedure. The object of this procedure as also of the procedure embodied in the corresponding Section 216 of the Code of 1859, was to give notice, so as to prevent undue surprise to a judgment-debtor when more than one year had elapsed between the date of the decree and the application for execution or when the decree was sought to be enforced against the legal representative of the party against whom the decree was originally made. It seems to us to be fairly obvious, therefore, that when the Legislature used the term 'revivor of judgment in the Limitation Acts of 1871 and 1877, they had in view the procedure embodied in Sections 216 of the Code of 1859 and 248 of the Code of 1877.

6. We are further fortified in this view by an examination of the provisions of the Common Law Procedure Act of 1852, Section 128 to 134 which fully define the nature of the proceedings for revivor of judgment, and there can be no reasonable doubt that when the framers of the Limitation Act of 1859 used the term 'revivor of judgment' they must have had in view the proceedings to revive, then current in the Supreme Court which were closely analogous to the proceedings to revive under the Common Law Procedure Act of 1852: Chitty's Archbold's Practice, 1866, Vol. II, page 1122.

7. It may be pointed out that there has been some diversity of judicial opinion upon the question whether a revivor of judgment prolongs the life of the original judgment for the purposes of limitation [Freeman on Executions, Vol. I, Section 93(a)] but the balance of authority, where the matter is not governed by statute, preponderates largely in favour of the view that the Statute of Limitations to which the judgment is subject ceases to run upon such revivor, although the reasons for this conclusion have not been unanimous. As briefly indicated in the judgment of Mr. Justice White in Ashutosh Dutt v. Doorga Churn Chatterjee (1880) I.L.R. 6 Calc. 504 the question had been raised in the Irish Courts and decided by the House of Lords as well as by the Judicial Committee of the Privy Council in favour of the view that time should run afresh from the date of the revivor. In fact almost from the very first the opinion of the Judges has tended in this direction: see Crofts v. Hughson. (1837) 2 Jones 499, kealey v. Bodkin (1837) Saussc and Scully 211, Finch v. Fitzgibbon (1838) 6 Ir. L.R.N.S. 312, Ottiwell v. Dunbar (1837) 6 Ir. L. Rec. N.S. 10, Otiiwell v. Farran (1837) Sau. and Sc. 218, Ryan v. Camby (1840) 2 Ir. Eq. Rep. 328; though authorities are not wanting the other way: see Bolton v. Armstrong (1836) 5 Ir. L. Rec N.S. 37. The point directly arose in the case of Ottiwell v. Farran (1839) 2 Ir. L. Rep. 110. But when the case was taken to the House of Lords on appeal from the Exchequer Chamber in Ireland [Farran v. Beresford (1842) 10 Cl & F. 318] the point was left undecided, although Tindal C.J. in delivering the opinion of the Judges, intimated that whatever might be the case if the revivor was between the same parties and was only necessary because the time for execution had elapsed, a new present right to receive was given by the judgment in scire facias when that right was necessary in consequence of the death of the parties. This doctrine was approved by Lord Lyndhurst in Farrel v. Gleeson (1844) 11 Cl. and F. 702 and may be taken as settled as regards a revivor against the representatives of a deceased party to the existing judgment. This case before the House of Lords, however, left open the effect of a revivor as between the original parties. The question was directly raised in Griffin v. Blake (1848) 2 Ir. Ch. Rep. 645 and it was held by Smith M.R. that time should begin to run afresh from such revivor, as well as from a revivor where there was a change of parties. This decision was approved by the Judicial Committee of the Privy Council in In re Blake (1853) 2 Ir. Ch. Rep. 643. This view is also supported by the high authority of Lord St. Leonards (Real Property Statutes, 123) and Mr. Prideaux (Judgments 57). We are not unmindful however that even in Ireland a question has been raised as to effect of the procedure substituted for the writ of revivor by the Rules of the Supreme Court (Ir.) 1891 Ord. XLII, Rules 24-25, which correspond with the English Rules of the Supreme Court 1883, Ord. XLII, Rules 22 and 23. With reference to this procedure, which corresponds with what is laid down in Section 248 of the Code of Civil Procedure of 1882, Mr. Justice O'Brien raised the question in Evans v. O' Donhell (1885) 16 L.R. Ir. 445, 452 whether an order for leave to issue execution under the Judicature Act would have the effect that was ascribed to a revivor by the House of Lords in Farran v. Beresford (1842) 10 Cl. & F. 319. But no reasons were assigned by the learned Judge in support of his opinion that the force of the Judicature Act would be held to deprive such an order of all efficacy as a means of making time run afresh. We are however here free from any such possible difficulty. We are called upon to construe Article 180 of the second schedule of the Limitation Act and to determine the meaning and scope of the term revivor of judgment used therein. When we look to the history of the legislation on the subject, we find it difficult to resist the conclusion that the Legislature must have intended by revivor of judgment' the procedure prescribed in Section 248 of the Code of Civil Procedure of 1882. With all deference to the opinion of Mr. Justice Wilson in Tincowrie Dawn v. Debendro Nath Mookerjee (1890) I.L.R. 17 Calc. 491, an opinion which is no doubt entitled to great weight, we are consequently not prepared to share the doubt expressed by that learned Judge. We observe that no reasons are stated in support of the doubt expressed, and the learned vakil for the appellant has not been able to assign any substantial reason in support of that view. An analysis of the nature of the writ of scire facias or of the writ of revivor shows conclusively that a proceeding under Section 248 of the Code of Civil Procedure of 1882 is in its essence and result identical for our present purposes with the former. We must, therefore, uphold the view taken in the case of Ashutosh Dutt v. Doorga Chum Chatterjee (1880) I.L.R. 6 Calc, 504 as well founded, and we are not prepared to dissent from the series of decisions in which that view has been approved and followed. It may be added that there are other weighty reasons in support of the view taken by us. The case of Ashutosh Dutt v. Doorga Charan Chatterjee (1880) I.L.R. 6 Calc, 504 was decided so far back as 1880, shortly after the Limitation Act of 1877 had come into operation. Since then, and in spite of the doubt expressed by Mr. Justice Wilson, the Legislature has not intervened. On the other hand, we find from the new Limitation Act (IX of 1908) which consolidates and amends the law on the subject, that the provisions of Article 180 are reproduced as Article 183 without any alteration. The inference seems irresistible that the judicial interpretation of Article 180 to which we have referred, correctly represented the intention of the Legislature. It is a well settled principle of construction that the Legislature, is presumed to know not only the general principles of law but the construction which the Courts have put upon particular statutes. In the words of Lord Campbell C.J. in Mansell v. Queen (1857) 8E. & B. 54, 73 and Lord Justice James in Ex parte Campbell (1870) L.R. 5 Ch. App. 703 'where a section of an Act which has received a judicial construction is re-enacted in the same words, such re-enactment must be treated as a legislative recognition of that construction': see also Dale's case (1881) 6 Q.B.D. 376 at p. 453, Greaves v. To field (1880) 14 Ch. D. 563, 571, Clark v. Wallond (1883) 52 L.J.Q.B. 321, Jay v. Johnstone [1893] 1. Q.B. 25, 189. The inference is therefore perfectly legitimate that the Legislature has in the new Act adopted the settled judicial construction which is thereby sanctioned and intended to be continued in force: see Re Ahbotsford (1879) 98 U.S. 440. But even independently of the provisions of the Act of 1908, the same inference would follow from another circumstances an express recognition of the construction which the Judges have put upon statutes is not always needed, in some cases the silence, of the Legislature is equally emphatic. This principle of construction is based on the ground that, as the Legislature knows what the law is and has the power to alter it, any mistake on the part of the Judges may at once be corrected, and the absence of any such correction, specially during a long period of time, indicates that the Courts have rightly ascertained the intention of the Legislature. We need only refer to the observation of Baron Lefroy in Phelan v. Johnson (1844) 7 Ir. L.R. 525: 'I recollect Lord Redesdale saying that when the Court has been in the habit of putting a particular construction upon an Act of Parliament and the Legislature has not interfered, it must be considered as the true construction of the Act.' On all these grounds we must hold that the order made in the second execution proceeding on the 6th May 1897 had the effect of reviving the original decree and consequently the present application which has been made within 12 years of that date, is not barred under Article 180 of the second schedule of the Limitation Act. This view is in no way opposed to the decision, of this Court in the case of Monohar Das v. Futteh Chand (1903) I.L.R. 30 Calc, 979 in which it was held that as a general rule, if there has been no order for execution, the mere fact that an application has been made for execution of a decree and notices have been issued under Sections 232 and 248 of the Code, does not operate as reviver within the meaning of Article 180. In the case before us, there was an order for execution, and the decision relied upon is on this ground obviously distinguishable.

8. It may be contended, however, that the application is barred under Section 230, Code of Civil Procedure, which provides that where an application to execute a decree for payment of money has been made under that section and granted, no subsequent application to execute the same decree shall be granted after the expiration of 12 years from the date of the decree sought to be enforced. In the present case, as already stated, the decree was made on the 16th December 1891 and an order for execution under Section 230 was made in the first execution proceeding of 1892 as also in the second execution proceeding of 1897. It may therefore be argued with some plausibility that, if Article 180 saves the execution from limitation, Section 230 presents an effective bar. There is no substance, however, in this objection, for as was pointed out in the cases of Mayabhai Prembhai v. Tribhuvandas Jagjivandas (1881) I.L.R. 6 Bom. 258 Ganapathi v. Balasundara (1884) I.L.R. 7 Mad. 540 and Fatteh Narain Chowdhry v. Ghundrabati Chowdhrain (1892) I.L.R. 20 Calc. 551, Section 230 ought not to be so construed as to make it conflict with the provisions of Article 180 of the Limitation Act. What was ruled in these cases was that the provisions of the two Acts ought not to be so interpreted as to contradict each other, and that, therefore, Section 230 cannot be taken to limit Article 180. It is worthy of notice that this interpretation has subsequently received the sanction of the Legislature, and in the Code of Civil Procedure of 1908, Section 48, which replaces the 3rd and 4th paragraphs of Section 230 of the Code of 1882, expressly provides that nothing in that section shall be deemed to limit or otherwise affect the operation of Article 180 of the second schedule of the Indian Limitation Act. Statutory authority has, therefore, been given to the rulings which declared Article 180 of the Limitation Act to be independent of Section 280 of the Code of Civil Procedure of 1882, and upon the principles of construction which we have already explained, the inference is irresistible that these decisions accurately interpreted the intention of the Legislature. It follows consequently that the second ground taken on behalf of the appellant must he overruled from every possible point of view.

9. The third ground taken on behalf of the appellant raises a purely technical objection of an entirely unsubstantial character. It is argued that upon the death of one of the judgment-creditors Balkissen, an application for substitution ought to have been made to the Original Side of this Court which passed the decree, and that, in the absence of an order from this Court, the District Court to which the decree had been transferred for execution had no authority to proceed with the execution at the instance of the other judgment-creditors, one of whom had obtained by survivorship the interest of the deceased creditor. An examination of the provisions of the Code makes it obvious that there is no foundation for this contention. The Civil Procedure Code does not expressly provide for an application for substitution under circumstances like these. There is no provision which renders necessary the actual substitution of the name of the legal representative for the validity of the proceedings in execution. Section 232 merely requires that the legal representative should apply for execution of the decree, and that his name should be brought on the record: Syud Nadir Hossein v. Baboo Pearoo Thovildarinee (1873) 19 W.R. 255, Balkishoon v. Mahommed Tamaz Allee (1872) 4 All. H.C. 90. This provision was substantially complied with in the case before us. The surviving decree-holders in their application to this Court for transfer of the decree stated that the creditor Balkissen Das was dead and that Sham Das, one of the other execution-creditors, was his legal representative. The application further contained a prayer that Shyam Das and Mathura Das, the two surviving execution-creditors, might be allowed to obtain a transfer of the decree to the Court of the District Judge of Hooghly for execution. Upon notice to the judgment-debtor and without any objection, the order for transfer was made. In our opinion it was not necessary for the decree-holders to make a formal application for substitution in the Court of the District Judge as they did; they were quite competent to carry on the execution without any such application. The third objection, therefore, cannot be supported and must be overruled.

10. The fourth ground taken on behalf of the appellant raises a question of estoppel. It is contended that by reason of the negligence of the present respondents, who had attached a decree in which the judgment-debtor was the decree-holder, his rights under the decree have been extinguished by limitation, and therefore the respondents are not entitled to proceed with execution till at any rate they have indemnified the appellant for the damage which he had sustained. No such objection, however, was taken in the Court below and there are no materials upon the record upon which this question can be determined. Apart, therefore, from the question, whether an objection of this character is maintainable in execution proceedings, we must decline to entertain it on the ground that it had not been taken at an earlier stage of the proceedings. The fourth ground of objection also must therefore be overruled.

11. The result is that none of the grounds upon which the decision of the Subordinate Judge is challenged can be maintained. The appeals, therefore, fail and must be dismissed with costs.


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