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Satish Chandra Kanungoe Vs. Nishi Chandra Dutta - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1919)ILR46Cal975,54Ind.Cas.431
AppellantSatish Chandra Kanungoe
RespondentNishi Chandra Dutta
Cases ReferredUpendra Nath Kalamuri v. Kusum Kumari Dasi
Excerpt:
sale - limitation--civil procedure code (act v of 1908), section 47; order xxi, rule 90--application to set aside a sale in execution of a decree on the ground that the property did not belong to the original judgment--debtor--limitation act (ix of 1908), schedule ii, articles 166, 181. - .....scope of article 166 to applications under order xxi, rules 89, 90 and 91 of the civil procedure code. the article is perfectly general in its terms and refers to an application 'under the code to set aside a sale in execution of a decree'. we are referred by the appellant to the case of ajo koer v. gorak nath (1913) 19 c.w.n. 517 and to another case in the same volume upendra nath kalamuri v. kusum kumari dasi (1914) 19 c.w.n. 520. but these were cases where application was made before and not, as here, after the sale. the policy of the legislature appears to be that questions such as this arising in execution should be brought before the courts and decided with the least possible delay. in this case no explanation is forthcoming why, if this property was really the property of the.....
Judgment:

Chitty, J.

1. This is an appeal by the judgment-debtor against an order of the District Judge of Chittagong holding that his application to set aside a sale was barred by limitation.

2. In the first place, it is doubtful whether any appeal lies; and the learned pleader for the appellant has not been able to satisfy us on this point. He concedes that if the amount of the suit was below Rs. 500 there would be no second appeal, but as to that we have not been informed.

3. Turning to the merits of the application, it appears that a decree was passed in 1904 against the appellant's father. In 1911 his father died. In 1913, presumably in an application for execution, the appellant was substituted in the place of his father who had died two years before. Attachment was levied on immoveable property in the hands of the appellant. The property was brought to sale on 12th November 1915. The application now before the Court was presented on the 8th November 1916-almost a year after. It is argued for the appellant that Article 181 of the Limitation Act applies and not Article 166. There appears to be no good reason for limiting the scope of Article 166 to applications under Order XXI, Rules 89, 90 and 91 of the Civil Procedure Code. The article is perfectly general in its terms and refers to an application 'under the Code to set aside a sale in execution of a decree'. We are referred by the appellant to the case of Ajo Koer v. Gorak Nath (1913) 19 C.W.N. 517 and to another case in the same volume Upendra Nath Kalamuri v. Kusum Kumari Dasi (1914) 19 C.W.N. 520. But these were cases where application was made before and not, as here, after the sale. The policy of the Legislature appears to be that questions such as this arising in execution should be brought before the Courts and decided with the least possible delay. In this case no explanation is forthcoming why, if this property was really the property of the appellant, he did not immediately upon attachment prefer a claim under Order XXI, Rule 58 of the Civil Procedure Code. Such a claim would have to be made without unnecessary delay, and a suit to establish his right, if the claim were refused, would have to be filed within a year. It is conceded that applications under Order XXI, Rules 89, 90 or 91 must be filed within 30 days of the sale. Why, then, in a case like the present, where the appellant has been guilty of laches in bringing his case before the Court at all, should the law allow him three years to do so? In my opinion, Article 166 is applicable, and the application of the appellant should have been made within thirty days from the date of the sale. The appeal is dismissed with costs.

Walmsley, J.

4. I agree.


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