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Oman Sheikh Vs. Halakuri Sheik - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal679
AppellantOman Sheikh
RespondentHalakuri Sheik
Excerpt:
limitation - suit--decree--suit on decree barred by limitation--neglect to execute decree in suit for possession--effect of barred decree--former suit relating to land. - .....for execution thereof within the time prescribed by the law of limitation. they then brought the present suit, and this was in august 1903, for recovery of possession of the same property upon the ground that though they did not obtain possession through the court, yet they succeeded in getting possession amicably from the hands of the defendants, and that they continued in such possession until the year 1309 b.s., corresponding to the year 1902, when they were dispossessed.2. the lower appellate court has dismissed the suit upon the ground that it is barred both under the provisions of section 13 and section 244 of the civil procedure code, and also upon the ground that the plaintiffs' cause of action, if there was any, had arisen antecedent to the institution of the previous suit,.....
Judgment:

Ghose and Pargiter, JJ.

1. The facts of this case are shortly these: The plaintiffs brought a suit against the defendants for recovery of possession of certain immoveable property and obtained a decree in the year 1892. They, however, did not apply to the Court, which made the decree for execution thereof within the time prescribed by the law of limitation. They then brought the present suit, and this was in August 1903, for recovery of possession of the same property upon the ground that though they did not obtain possession through the Court, yet they succeeded in getting possession amicably from the hands of the defendants, and that they continued in such possession until the year 1309 B.S., corresponding to the year 1902, when they were dispossessed.

2. The lower Appellate Court has dismissed the suit upon the ground that it is barred both under the provisions of Section 13 and Section 244 of the Civil Procedure Code, and also upon the ground that the plaintiffs' cause of action, if there was any, had arisen antecedent to the institution of the previous suit, and that the same cause of action would not arise again for the subsequent suit, after they had allowed the previous decree to be barred by limitation.

3. So far as the provisions of Sections 13 and 244 of the Code referred to in the judgment of the Court below are concerned, we do not think that they operate as a bar to the maintenance of the present suit; but we do not understand how, when the plaintiffs allowed the previous decree to be barred by limitation and when that decree has now become absolutely null, they can regard that decree as affording to them a fresh cause of action in order to entitle them to maintain the present suit. No doubt, if the plaintiffs had succeeded in obtaining possession, as alleged in their plaint, without the intervention of the Court, and had remained in such possession, and then had been dispossessed, that would certainly have given them a fresh cause of action; and they might have relied upon the decree in their favour as a document conclusive between the parties so far as the question of title is concerned. But that is not what has happened in the present case. It has been found that the plaintiffs never executed the decree, never obtained possession amicably as alleged in the plaint; and that being so, we are unable to hold that the mere fact that there was a decree made in their favour would entitle them to institute a fresh suit upon the same cause of action upon which the former suit had been founded We need hardly add that the argument of the learned vakil for the appellant proceeds upon the idea of a cause of action different from that which was alleged in the plaint. In the plaint, as we have already mentioned, the cause of action was dispossession by the defendants in the year 1902, but now it is said in the course of the argument of the learned vakil that there was a right conferred upon the plaintiffs under the decree which was made in their favour, and that they attempted to take-possession, but were dispossessed.

4. We desire to add that the learned vakil for the appellants has relied upon certain cases decided by this Court, in which it has been held, with reference to the case of a purchaser at a sale in execution of a decree, that though he may not have obtained possession through the aid of the Court, he may still bring a suit for recovery of possession. It will, however, be observed that those cases proceeded mainly, if not entirely, upon a consideration of Article 138 of the Indian Limitation Act, which article provides for a suit being instituted by an auction purchaser for recovery of the property sold to him, the limitation prescribed being twelve years from the date of sale. Those cases we think. have very little or no application to the present case. The law of limitation prescribes distinctly a period of three years for execution of a decree. The plaintiffs chose to allow that period to expire. The decree has now become a nullity. They never obtained possession of the land in question, and we are unable to hold that they are now entitled to rely upon that decree and seek to recover possession of the land upon the footing thereof. The result is that this appeal is dismissed with costs.


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