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J.C. Macgregor, Receiver of the Estate of the Late Bejoy Keshub Roy Vs. Tarini Churn Sircar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal124
AppellantJ.C. Macgregor, Receiver of the Estate of the Late Bejoy Keshub Roy
RespondentTarini Churn Sircar
Cases ReferredHurry Charan Bose v. Subaydar Sheikh
Excerpt:
execution of decree - omission to describe the property to be attached--act xiv of 1882 sections 237, 248--limitation. - .....clear that this is an application not to attach and sell any specific portion of the judgment-debtor's property, but to attach and sell the whole wherever it is; and the question is, whether this is an application to attach and sell his property within the meaning of sections 235 and 237 of the code of civil procedure.5. section 230, which is the first section that applies to this matter, provides that when the holder of a decree desires to enforce it, he shall apply to the court which passed the decree, or if the decree has been sent to another court, then to such other court; and section 235 says that the application shall be in writing and shall contain certain particulars. and then section 237 provides that, whenever an application is made for the attachment of any immoveable.....
Judgment:

W. Comer Petheram, C.J.

1. I think that this appeal must be allowed.

2. The question here is from what period a particular application is to date, with reference to the period of limitation.

3. The application in this case was an application to execute a decree which was dated on the 10th July 1873. and on the 8th July 1885 an application was made to execute that decree. The decree-holder applied to execute the decree by arresting the judgment-debtor and by the attachment and sale of his property.

4. It is perfectly clear that this is an application not to attach and sell any specific portion of the judgment-debtor's property, but to attach and sell the whole wherever it is; and the question is, whether this is an application to attach and sell his property within the meaning of Sections 235 and 237 of the Code of Civil Procedure.

5. Section 230, which is the first section that applies to this matter, provides that when the holder of a decree desires to enforce it, he shall apply to the Court which passed the decree, or if the decree has been sent to another Court, then to such other Court; and Section 235 says that the application shall be in writing and shall contain certain particulars. And then Section 237 provides that, whenever an application is made for the attachment of any immoveable property of the judgment-debtor, it shall contain certain particulars; and finally it is provided by Section 245 that, where the requirements of Sections 235 to 238 have not been complied with, the Court may allow the applicant, within a time to be fixed by the Court, to amend the mistake or omission.

6. The first question then is, whether this was an application to attach any immoveable property of the judgment-debtor, because it appears from Section 237 that in that case it is necessary to give some indication of what immoveable property of the judgment-debtor it is required to attach ; and, therefore, if the application were to attach half the property of the judgment-debtor, I should think myself that that would not be an application at all within the meaning of the section, because it would not show what portion of the property it was intended to attach. But, where the application is to attach and sell the whole of the judgment-debtor's property, it is clear there could be no mistake as to what portion of the property it was intended to attach, because what the creditor says is, I want to take the whole.

7. The section says that, in addition to stating what property he wants to attach, the applicant shall describe it, and that is essential for the purpose of showing what property it is intended to attach ; but sufficiency of description cannot be essential, where it is accompanied by a declaration that the creditor intends to take the whole. If, however, Section 237 does apply, it is a mere defect of description, and that defect can be remedied under Section 245; and all the decisions under the cognate sections of the Code show that, where an application is made on a particular date, and it is afterwards amended under another section, the date from which limitation is to run in respect of that application is the original date of its presentation; and that shows that, where the application is afterwards amended by giving the particulars required by Section 237, on an application made at a later period, the two applications become an entire application, dating from the date the first application was presented. Therefore, in my opinion, the date which must be taken as the date from which limitation is to count is the 8th July 1885, and therefore, I think, this petition was in time.

8. The only other matters which it is necessary to notice are the two or three cases on the subject which were referred to in the course of the argument. The case of Syed Mahomed v. Syud Abedoollah 12 C.L.R. 279 decided by Mr. Justice Mc Donell and Mr. Justice Field is, in my opinion, a case clearly in point. It decides the same point that we decide here; and if we had any doubt about this case, it would be our duty to follow that decision. So far as the oases are concerned we decide in accordance with them, unless it can be said that a note of Mr. Justice Mitter in the case of Hurry Charan Bose v. Subaydar Sheikh 12 C. 161 looks the other way; and at first sight it may be said to do so. He says:

When the case goes back the Munsif will take care that execution does not issue against any property not mentioned in the petition of the previous execution case No. 30 of 1884.

9. Now that note seems to imply that, in that particular application, some property was mentioned as being the property of the judgment-debtor, but in this case no specific property is mentioned in the application, and the property which is mentioned in it is all the property which the judgment-debtor has, and therefore the case does not come within the view expressed by Mr. Justice Mitter in that note. In that case, as I said before, the particulars of the property would appear to have been given, but here no particulars are given which would go beyond the description 'the whole of the debtors' property.'

10. For these reasons I think that the judgment of the Subordinate Judge was right, and that of the District Judge was wrong. His judgment will, therefore, be reversed, and that of the Subordinate Judge restored with costs, both in this Court and in the Court below.


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