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Rajaram Pandey Vs. Raghubansman Tewary and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal563
AppellantRajaram Pandey
RespondentRaghubansman Tewary and ors.
Excerpt:
claim to attached property - civil procedure code (1882), section 280--claim by a mokuraridar--limitation--limitation act (xv of 1877), schedule ii, article 11. - .....that is a judicial determination under section 280 of the code of civil procedure of the claim to possession of the property under this mokurari. the claim was allowed. the section directs that when the court 'is satisfied that for the reasons stated in the claim or objection, such property was not when attached in the possession of the judgment-debtor or some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in possession of the judgment-debtor at such time, it was so in his possession not on his own account or as his own property, but on account of or in trust for some other person or party on his own account and partly on account of some other person, the court shall pass an order for releasing the property wholly or.....
Judgment:

Trevelyan and Beverley, JJ.

1. This suit was brought by the plaintiff, who is a judgment-creditor and bought property in execution of his decree against persons who claim to hold under a mokurari executed by the judgment-debtor after the decree and before the attachment. The suit has been held to be barred by both the lower Courts on the ground that it was brought beyond the three years' period of limitation given by Article 91 of the second schedule to the Limitation Act in cases of suits to set aside an instrument.

2. In our opinion it is not necessary to consider that question, as we think the suit is barred by the one year's limitation provided under Article 11 of the second schedule of the same Act.

3. The alleged mokuraridar filed a claim. The claim has not been put in, but the order has been put in. The order made recites what was done. It is dated the 12th June 1896. It states that the claimant's witnesses we examined; that the claimant's Vakil declined to call any more witnesses; that the decree-holder's Vakil's arguments were heard; that the mokurari pottah was proved; and that the claim was granted; and that the property would be sold with a declaration of the mokurari.

4. That is a judicial determination under Section 280 of the Code of Civil Procedure of the claim to possession of the property under this mokurari. The claim was allowed. The section directs that when the Court 'is satisfied that for the reasons stated in the claim or objection, such property was not when attached in the possession of the judgment-debtor or some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in possession of the judgment-debtor at such time, it was so in his possession not on his own account or as his own property, but on account of or in trust for some other person or party on his own account and partly on account of some other person, the Court shall pass an order for releasing the property wholly or to such extent as it thinks fit from attachment.'

5. The effect of this order was to release the property to the extent of the mokurari interest, and direct that it be sold subject to that mokurari interest. What was to be sold was in reality the right to receive mokurari rent. There is no other construction, so far as we can see, which can be placed upon this order. If that be so, it follows that the judgment-creditor, if he wanted to sell the property clear of the mokurari, was bound to bring the suit within a year. The suit was brought long after a year had elapsed; and is, therefore, barred by the Law of Limitation.

6. On this ground we think that this appeal must be dismissed with costs.


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