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Biswa Sonan Chunder Gossyamy Vs. Binanda Chunder Dibingar Adhikar Gossyamy - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal416
AppellantBiswa Sonan Chunder Gossyamy
RespondentBinanda Chunder Dibingar Adhikar Gossyamy
Cases ReferredBarada Sundari Dabea v. Fergusson
Excerpt:
limitation - civil procedure code, sections 108, 280 and 647--application for execution of decree--practice of striking off execution proceedings--procedure. - .....equally applicable to all proceedings other than suits and appeals. it is therefore applicable to execution proceedings. when an execution proceeding therefore is dismissed in default of appearance of the decree-holder, he can within the time allowed by the law of limitation present an application under section 108 asking that the order of dismissal be set aside, and that a day be appointed to proceed with the case. this application must of course set forth such matter as is specified in the section, and the grounds upon which it is made, if the court of first instance, having improperly set aside its order dismissing a suit or other proceeding, appoints a day for taking further steps in the matter of such suit or proceeding, there may be an appeal. the parties have thus full.....
Judgment:

Field, J.

1. The facts of this case are fully set out in the judgment of the learned Judge in the Court below, and it is not necessary for us to recapitulate them. The Judge refers to the following passage in the judgment of White, J. in Barada Sundari Dabea v. Fergusson 11 C.L.R. 17: 'We wish to observe that it cannot be too widely known that when execution proceedings are struck off on the mere motion of the presiding judicial officer, the rights of the parties to those proceedings are not in any way affected. The striking off is not in accordance with any provision in the Code of Civil Procedure. It is done merely for the convenience of the Court, and with a view to diminish the number of eases which might otherwise appear to have been pending in their Court for a long time. When the striking off takes place upon the application of the parties or, after their failure to appear, when they have received due notice to appear, their rights may be affected by the striking off, but whether they are so or not would depend upon the circumstances of each case.' It has been pressed upon us that the result of the application of this principle will be that decree-holders will manage to avoid altogether the provisions of the Limitation Act as to the execution of decrees. We are wholly unable to accede to this argument, and we desire to say that we concur in the view expressed in the passage which I have just quoted. If Mofussal Courts would follow the provisions of the Circular Orders laid down for their guidance, and post in their Court-houses a list of cases ready for hearing, specifying the date on which those cases are to be heard, parties would have no just ground of complaint, if their cases, being taken up on the dates so specified, were dismissed in default of their appearance. It would be very desirable that Courts in the Mofussal should abandon the practice of 'striking cases off.' There is no provision in the Code of Civil Procedure for striking off a case. The only proper mode of dealing with a case, whether a regular suit or a miscellaneous proceeding, when the parties do not appear, is to dismiss it. When a case is dismissed in consequence of the parties not appearing, an application may be made to the Court under the provisions of Section 108. This section applies to regular suits, but under the provisions of Section 647 it is equally applicable to all proceedings other than suits and appeals. It is therefore applicable to execution proceedings. When an execution proceeding therefore is dismissed in default of appearance of the decree-holder, he can within the time allowed by the law of limitation present an application under Section 108 asking that the order of dismissal be set aside, and that a day be appointed to proceed with the case. This application must of course set forth such matter as is specified in the section, and the grounds upon which it is made, If the Court of First Instance, having improperly set aside its order dismissing a suit or other proceeding, appoints a day for taking further steps in the matter of such suit or proceeding, there may be an appeal. The parties have thus full opportunity of litigating the question, whether an execution proceeding has been properly dismissed in consequence of the decree-holder not appearing at any stage at which such appearance may be necessary.

2. Now, let us apply these principles to the present ease. The Judge has found that the execution was one continuous execution, and that the orders made upon the applications of the 4th March 1882 and 11th July 1882 merely restored the original execution proceedings to the file, and that, therefore, the original execution proceedings were being continued. If after the execution proceedings were struck off on the 19th August 1881, or on the 2nd June 1882, a proper application under the provisions of Section 108 of the Code had not been made, the judgment-debtor might have object0d in the first Court, and might have followed out his objection by preferring an appeal.

3. No such course was taken, and neither in the lower Appellate Court nor on the grounds of appeal now before us has it been urged that the Court of First Instance did not properly exercise its jurisdiction under Section 108 of the Code in restoring the execution proceedings to the file by its order in the petition of 4th March 1882, or by its subsequent order in the petition of the 11th July 1882. This being so, the only question which we have to consider is, whether the Judge in the Court below, having found that there has been one continuous execution proceeding throughout, we can say that the application of the 11th July 1882 is barred by Section 230 of the Code of Civil Procedure. We think we cannot say that it was so barred. Then the Judge having found that there has been one continuous execution, no ground has been shown to us upon which we can question his finding upon this matter, which is a matter of fact. The appeal must, therefore, be dismissed with costs.


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