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HafizuddIn Chowdhry and ors. Vs. Abdool Aziz - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal755
AppellantHafizuddIn Chowdhry and ors.
RespondentAbdool Aziz
Excerpt:
limitation act (xv of 1877), article 170, clause 4 - execution of decree--civil procedure code (act xiv of 1882), sections 365, 366--succession certificate act (vii of 1889), section 4, clause (b), article (iii). - .....act, the decree-holders are not barred.2. the point i think is very easy of decision. both the civil procedure code and the limitation act were passed long before the succession certificate act. therefore, whatever interpretation may be put on the word 'application' as used in the civil procedure code and the limitation act, it could in no way depend upon the succession certificate act.3. then it is said that the persons who made the application were not the proper persons to make it. the answer to that is that, when a decree is transferred, as in the present case, by operation of law, the transferee may apply for execution. here the application was in proper form and made by the heirs of the decree-holder.4. it has been further argued that as the previous application to which i have.....
Judgment:

O'Kinealy and Banerjee, JJ.

1. In this case the decree-holder, a Mahomedan lady, died, leaving as heirs and residuaries ten persons. After her death these ten persons applied for execution of the decree, and the application was registered, but as they were . not in a position to file a certificate such as is required by Section 4, Clause (b) of the Succession Certificate Act, the application was dismissed. That was an application to arrest the debtor. The present application is of a different nature, and it is admitted on all hands that if the former application was such as is contemplated by Article 179 of the second schedule of the Limitation Act, the decree-holders are not barred.

2. The point I think is very easy of decision. Both the Civil Procedure Code and the Limitation Act were passed long before the Succession Certificate Act. Therefore, whatever interpretation may be put on the word 'application' as used in the Civil Procedure Code and the Limitation Act, it could in no way depend upon the Succession Certificate Act.

3. Then it is said that the persons who made the application were not the proper persons to make it. The answer to that is that, when a decree is transferred, as in the present case, by operation of law, the transferee may apply for execution. Here the application was in proper form and made by the heirs of the decree-holder.

4. It has been further argued that as the previous application to which I have referred was dismissed by the Munsif under Section 158 of the Civil Procedure Code, and that decision was not appealed from, the decree-holder can make no further application. Admitting for the sake of argument, and only for the sake of argument, that the order rejecting the previous application was made under Section 158, still it is quite clear that the relief asked for in that application was different from what is asked for here, and consequently the decree-holders are not debarred from making the present application.

5. The result is that the decisions of the lower Courts must be set aside and the appeal allowed with costs.


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