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Mahomed Mabood Bux and ors. Vs. Toree Mahomed - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal730
AppellantMahomed Mabood Bux and ors.
RespondentToree Mahomed
Cases ReferredRamhit Rai v. Satgur Rai I.L.R.
Excerpt:
limitation act (xv of 1877), section 19, and schedule ii, article 179 - execution of decree, application for--acknowledgment in writing. - .....limitation act.2. it appears that execution proceedings were going on in february 1879, and the decree-holders on the 22nd of that month paid a court-fee of rs. 2 into court, in connection with those proceedings. the lower court has held that this act of the decree-holders was practically such an application as comes within the meaning of article 179, and that thus the decree is saved from limitation.3. we think that this opinion is not sustainable, for it seems to us clear that the decree-holders did not on that occasion ask the court to take any step in aid of the execution. it is said that their object was to obtain leave to bid for some property then up for sale, but such an application would not, in our opinion, give a fresh starting point. we are aware that very liberal.....
Judgment:

Tottenham, J.

1. The question for decision in this appeal is, whether an application made on the 26th of January 1882 for the execution of a decree, dated the 26th of August 1878, is barred by limitation. The judgment-debtor, appellant, contends that it is barred, as having been made more than three years after any previous application to the Court to take some step in aid of execution of the decree within the meaning of Article 179 of the Schedule to the Limitation Act.

2. It appears that execution proceedings were going on in February 1879, and the decree-holders on the 22nd of that month paid a Court-fee of Rs. 2 into Court, in connection with those proceedings. The lower Court has held that this act of the decree-holders was practically such an application as comes within the meaning of Article 179, and that thus the decree is saved from limitation.

3. We think that this opinion is not sustainable, for it seems to us clear that the decree-holders did not on that occasion ask the Court to take any step in aid of the execution. It is said that their object was to obtain leave to bid for some property then up for sale, but such an application would not, in our opinion, give a fresh starting point. We are aware that very liberal constructions in favour of decree-holders have been put upon Article 179 by other High Courts in India, but we cannot in this case adopt the interpretation of the Subordinate Judge.

4. Yet we think that we may upon other grounds support his decision that the decree is not barred. Last of all the several points laid before us by the respondent's vakeel was one which is supported by the authority both of law and precedent. Section 19 of the Limitation Act provides for a new period of limitation from the date of signing any written acknowledgment in respect of a right claimed against the party signing.

5. A Division Bench of this Court has held, in the case of Ram Coomar Kur v. Jakur Ali I.L.R. 8 Cal. 716 that a petition made by a judgment-debtor, and signed by his vakeel, praying for additional time for payment of the amount of a decree, does constitute such an acknowledgment as is mentioned in Section 19; and that an application for execution of a decree is an application in respect of 'a right' within the meaning of that section.

6. There is a decision of the Pull Bench of the High Court of Allahabad to the same effect; see Ramhit Rai v. Satgur Rai I.L.R. 3 All. 247. In the present case we find that there was a petition this kind filed by the judgment-debtor on the 21st February 1879, and signed by his vakeel. Following the precedents above cited, we hold that the present application, made within three years of that one, is in time.

7. We accordingly dismiss the appeal, but under the circumstances we make no order as to costs.


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