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Brojo Nath Surma Vs. Isswar Chundra Dutt (for Self and as Guardian of Prossano Kumar Dutt Minor) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal482
AppellantBrojo Nath Surma
Respondentisswar Chundra Dutt (for Self and as Guardian of Prossano Kumar Dutt Minor)
Cases ReferredJanaki Ballav Sen v. Hafiz Mahomed Ali Khan I.L.R.
Excerpt:
succession certificate act (vii of 1889), section 4 - execution of decree--application for execution by legal representative without certificate. - .....was made on the 13th july 1886. that application for some cause or other was struck off. the decree-holder then died, and on the 26th november 1889 his legal representative made a second application, which appears to have been struck off or rejected on the 15th february 1890. the present application was filed in the following month, march 1890.2. the first court held that, inasmuch as the second application of the 26th november 1889 was made by the legal representative of the deceased decree-holder, without the production of any certificate under act vii of 1889 or other act for the time being in force, the application was not in accordance with law, and that therefore the present application of march 1890, having been made more than three years from the first application of the.....
Judgment:

Beverley, J.

1. This is an appeal against an order in respect of the execution of a decree which was made in August 1885. It appears that an application to execute that decree was made on the 13th July 1886. That application for some cause or other was struck off. The decree-holder then died, and on the 26th November 1889 his legal representative made a second application, which appears to have been struck off or rejected on the 15th February 1890. The present application was filed in the following month, March 1890.

2. The first Court held that, inasmuch as the second application of the 26th November 1889 was made by the legal representative of the deceased decree-holder, without the production of any certificate under Act VII of 1889 or other Act for the time being in force, the application was not in accordance with law, and that therefore the present application of March 1890, having been made more than three years from the first application of the 13th July 1886, is barred by limitation.

3. On appeal the District Judge has reversed this order, holding that under the terms of Section 4 of Act VII of 1889 it was competent for the legal representative of the deceased decree-holder to make his application without, at the same time, filing any certificate.

4. The judgment-debtors have appealed to this Court against that order of the District Judge: and two points have been taken before us, the first being that the application of the 26th November 1889 was itself barred, as having been made more than three years subsequent to the first application of the 13th July 1886.

5. This point does not appear to have been argued, if indeed it was taken, in either of the lower Courts; and as its decision would depend upon facts and circumstances which are not before us, we do not think it right to express any opinion upon it. But, assuming that the application of the 26th November 1889 was made within time, we are of opinion that the order of the Lower Appellate Court, holding that that application was a good application in law, must be upheld. Section 4 of Act VII of 1889 merely provides that the Court shall not proceed upon an application of a person claiming to be entitled to execute a decree, except on the production of a certificate or other authority of the like nature. But it does not follow from that section, that an application might not be made without the production of a certificate, the certificate being supplied during the pendency of the proceedings; arid this war the view taken by a Division Bench of this Court in the case of Janaki Ballav Sen v. Hafiz Mahomed Ali Khan I.L.R. 13 Cal 47.

6. Under these circumstances, we think that this appeal fails and must be dismissed with costs.


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