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Wasi Imam and anr. Vs. Poonit Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal696
AppellantWasi Imam and anr.
RespondentPoonit Singh and anr.
Cases ReferredSitla Din v. Shoo Prasad I.L.R.
Excerpt:
limitation act (xv of 1877), schedule ii, article 179, clause 4 - application for execution of decree--step in aid of execution--application to record certificate of payment by judgment-debtor in part satisfaction--civil procedure code, section 258. - .....appeal is whether the application that was made by the judgment-debtors, and consented to by the decree-holders, on the 23rd april 1888, was an application to take some step in aid of execution of the decree obtained by the decree-holders.2. we are disposed to think that this was a joint application by both the judgment-debtors and the decree-holders; and what was asked for in the said application was, as we understand it, that a certain amount of money paid to the decree-holders out of court might be certified in accordance with the provisions of section 258 of the civil procedure code, and that six months' time might be allowed to the judgment-debtors for payment of the balance of the decretal money, the attachment that had been put upon the property of the judgment-debtors being.....
Judgment:

Ghose and Gordon, JJ.

1. The sole question involved in this appeal is whether the application that was made by the judgment-debtors, and consented to by the decree-holders, on the 23rd April 1888, was an application to take some step in aid of execution of the decree obtained by the decree-holders.

2. We are disposed to think that this was a joint application by both the judgment-debtors and the decree-holders; and what was asked for in the said application was, as we understand it, that a certain amount of money paid to the decree-holders out of Court might be certified in accordance with the provisions of Section 258 of the Civil Procedure Code, and that six months' time might be allowed to the judgment-debtors for payment of the balance of the decretal money, the attachment that had been put upon the property of the judgment-debtors being allowed to continue.

3. The Court upon this application made an order in accordance with the request of the parties.

4. The question whether an application like this might be regarded as an application to take some step in aid of execution was considered in a case decided by this Court, Tarini Das Bandyopadhya v. Bishtoo Lal Mukhopadaya I.L.R. 12 Cal. 608, and it was there held that an application by a judgment-creditor to bring an execution proceeding on the file, and to record his certificate of the payment of a sum of money by the judgment-debtor, is an application to take some step in aid of execution of the decree within the meaning of Clause 4, Article 179 of schedule II of the Limitation Act. And we find that this case was followed by the Allahabad High Court in the case of Muhammad Husain Khan v. Ram Sarup I.L.R. 9 All. 9. There is also another case of the Allahabad High Court to the same effect, Sitla Din v. Shoo Prasad I.L.R. 4 All. 60.

5. We think that (although the matter is not free from doubt) we ought to adopt the rulings of this Court and the Allahabad High Court in this case; and following these rulings, we hold that the application which was made, and which we regard as the joint application of both the parties concerned, gave the decree-holders a fresh start of time.

6. We observe that the Lower Court assigns another reason for holding that the decree is barred by limitation, and that is, that the application that was made on the 23rd April 1888 was not an application by the whole body of judgment-debtors, but by some of them; but we do not think that that makes any difference in the principle which ought to govern us in this matter, because explanation 1 of Article 179 of the Limitation Act, among other matters, provides that 'where a decree or order has been passed jointly against more persons than one, the application if made against any one or more of them, or against his or their representatives, shall take effect against them all.' That, we think, is an authority for holding that the application made by the decree-holders in this case, the decree being a joint decree against all the judgment-debtors, saves the decree-holders from being barred by limitation.

7. The result is that the order of the Court below is set aside and that of the Court of First Instance restored, with costs.


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