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Radha Prosad Singh Vs. Sundur Lall and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal644
AppellantRadha Prosad Singh
RespondentSundur Lall and anr.
Cases ReferredMungul Pershad Dichit v. Grija Kant Lahiri L.R.
Excerpt:
limitation act (xv of 1877), schedule ii, article 179 - execution of decree--application for--step in aid of execution. - .....that is, costs of bringing certain property to sale in execution of the decree in question. the present application was made on the 28th of march 1881.2. upon these facts the district judge was of opinion that, under the limitation act of 1877, the present application, having been made more than three years after the application of the 26th september 1877, is barred by limitation. in appeal it is contended that the present limitation act does not apply to this case because the decree in question was passed on the 4th of august 1870, when the limitation act of 1859 was in force, and in support of this contention the well-known case of mungul pershad dichit v. grija kant lahiri i.l.r. 8 i.a. 123; i.l.r. 8 cal. 51 decided by the judicial committee of the privy council on the 10th june.....
Judgment:

Mitter, J.

1. This is an appeal against the decision of the District Judge of Sarun, dismissing a petition for execution of decree, dated the 4th August 1870, upon two grounds: (1st), that the application for execution is barred by limitation; and (2ndly), that as regards one of the judgment-debtors, viz., the defendant No. 2, he is liable only to the extent of the property hypothecated in a certain bond executed in favour of the plaintiff,' decree-holder, and that that property having been sold he is not any further liable for the balance of the decree. It appears that the application next preceding the one now, under our consideration for execution was filed on the 26th September 1877. It was followed by the sale of certain property: on the 1st of April 1878. Then it further appears that on the 8th July 1878, the decree-holder deposited Rs. 2 as Nilamee fees, that is, costs of bringing certain property to sale in execution of the decree in question. The present application was made on the 28th of March 1881.

2. Upon these facts the District Judge was of opinion that, under the Limitation Act of 1877, the present application, having been made more than three years after the application of the 26th September 1877, is barred by limitation. In appeal it is contended that the present Limitation Act does not apply to this case because the decree in question was passed on the 4th of August 1870, when the Limitation Act of 1859 was in force, and in support of this contention the well-known case of Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R. 8 I.A. 123; I.L.R. 8 Cal. 51 decided by the Judicial Committee of the Privy Council on the 10th June 1881, has been cited. There is a very essential difference between the facts of the case cited before us and of the present case,--that difference being that in Mungal Pershad Dichit v. Grija Kant Lahiri the application for execution, which was under the consideration of the Judicial Committee, was filed when the Limitation Act of 1871 was in force, and the decision of the Privy Council was based upon the provisions of Section 1 of the Limitation Act of 1871. There is no such corresponding provision in the present Limitation Act. It is, therefore, doubtful whether the ruling referred to will apply to a case like the present in which the application for execution was filed after the Limitation Act of 1871 had been repealed; but it is not necessary to decide that question in this case, because it seems to us that, conceding in favour of the judgment-debtors that the present Limitation Act applies to this execution case, we are of opinion that the District Judge was in error in holding that the application of the 28th of March 1881 is barred by limitation. Under Article 179. Schedule II of the Limitation Act, the decree-holder is entitled to apply for execution Within three years from any date when he takes some step in aid of execution of, the decree. The deposit of Rs. 2 as Nilamee fees on the 8th July 1878, is certainly a step in aid of execution of the decree, and the application under our consideration, viz., the application of the 23rd March 1881, being within three years from the 8th July 1878, is within time. We are, therefore, of opinion that the District Judge was in error in throwing out the application for execution on the ground that it is barred by limitation. As regards the second ground upon which the District Judge has rejected the application in so far as the defendant No. 2 is concerned, it appears to us that the decree which is sought to be executed made both the defendants viz., the defendant No. 1 and the defendant No. 2, personally liable. The last portion of the decree contains only a declaration of lien upon the property hypothecated for the realization of the amount decreed. That being so, the defendant No. 2 is as much personally liable for the balance of the decree as the defendant No 1.

3. We, therefore, reverse the decision of the lower Court, and decree this appeal with costs.

Field, J.

4. Three points have been argued before us in this appeal. The first point relates to the application to this case of the principle laid down in the Privy Council decision of Mungul Pershad Dichit v. Grija Kant Lahiri L.R. 8 I.A. 123; I.L.R. 8 Cal. 51. Now the present case is to be governed by the Limitation Act of 1877, and that Act contains no provision similar to those contained in Section 1, Act IX of 1871. This being so the question arises whether Act XIV of 1859 can be said to have been repealed in respect of suits instituted before the 1st of April 1873. Now it may be argued that Section 2, Act IX of 1871 is a complete and absolute repeal of the Acts therein referred to, and to be found in the first schedule; one of these Acts being Act XIV of 1859, except a portion of Section 15 with which we have no concern, and it may then be contended that the effect of Section 1, Act IX of 1871 was to stay the applicability of the general repeal in respect of the suits in question, that is, suits instituted before the 1st day of April 1873. Then it may be argued that, when Act IX of 1871 was repealed by the present Act XV of 1877, the effect of that repeal was to do away with the stay of the repeal contained in Section 2, Act IX of 1871, and that the immediate result was that the complete and absolute repeal of Act XIV of 1859, which but for Section 1, Act IX of 1871, would have had effect upon the class of suits specified immediately, had that effect and operation which before were stayed or delayed. I agree with my learned colleague that in the present case it is not necessary for us to decide this point. It may perhaps arise hereafter, and other cases and other considerations may be laid before us which may assist us in forming a conclusion. I, therefore, think that it will be better to abstain from a definite determination of a question, the decision of which is not absolutely necessary for the disposal of this case.

5. The second point is, whether the payment of Rs. 2 as Nilamee fees in July, 1878 was, within the meaning of the present law, a step in aid, of the execution of the decree. I am of opinion that it was such a step.

6. The third point relates to the construction of the decree as regards the liability of the defendant No. 2, and in the view taken by my learned colleague upon that point I entirely concur.


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