Skip to content


FakaruddIn Mahomed Ahsan Vs. the Official Trustee of Bengal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal538
AppellantFakaruddIn Mahomed Ahsan
RespondentThe Official Trustee of Bengal
Cases ReferredRamanadan Chetti v. Kunnappu Chetti
Excerpt:
civil procedure code (act xiv of 1882), sections 244 and 647 - execution proceedings--review. - .....proceedings.3. it is contended that the judgment-debtor had a right to apply on the 3rd july to re-open the accounts, and it is said that, as there is no special provision of the limitation act applicable to an application of this kind, the judgment-debtor was at liberty to make this application at any time within three years. article 178.--there is no section of the code of civil procedure which gives the judgment-debtor aright to make an application of this kind,--that is, an application, after the execution has been closed and the decree satisfied, to re-open a matter which might have been discussed or argued in the course of the execution proceedings. we think, having regard to the provisions of section 647 of the code of civil procedure, that if the judgment-debtor having neglected.....
Judgment:

1. In this case the execution proceedings were struck off by an order dated the 7th May 1883, which set forth that the decree was satisfied. The petition which forms the subject of this appeal was filed on the 3rd July following, and in that petition it was sought to re-open the whole of the accounts between the parties.

2. It has been contended to-day before us that this petition of the 3rd July ought to be read with a previous petition of the 3rd February 1883. As to this petition of the 3rd February, the Judge says: 'In February last, the judgment-debtor applied to scrutinize the state of the account, and the request was granted,' The original petition has not been produced before us to-day, and we must accept the account given of it by the District Judge. Accepting this account, it appears clear that all that was asked by the petition of the 3rd February was permission to examine the accounts, and that this permission was granted. This being so, it was open to the judgment-debtor, having examined the accounts between the 3rd February and 7th May, to object to the manner in which they were taken, and, if necessary, to the sum total for which execution was issued. Nothing of this sort was done, and we must take it that the effect of the order of the 7th May was to close the execution proceedings.

3. It is contended that the judgment-debtor had a right to apply on the 3rd July to re-open the accounts, and it is said that, as there is no special provision of the Limitation Act applicable to an application of this kind, the judgment-debtor was at liberty to make this application at any time within three years. Article 178.--There is no section of the Code of Civil Procedure which gives the judgment-debtor aright to make an application of this kind,--that is, an application, after the execution has been closed and the decree satisfied, to re-open a matter which might have been discussed or argued in the course of the execution proceedings. We think, having regard to the provisions of Section 647 of the Code of Civil Procedure, that if the judgment-debtor having neglected the opportunity which he had between the 3rd February and the 7th May to examine the accounts, desired to show that more money had been levied from him under the execution than was due from him under the decree, the only course open to him would have been to apply for a review of the order of the 7th May, which declared the decree to be satisfied, and struck off the execution proceedings.

4. It has been contended that the matter of this petition of the 3rd July 1883 was a matter which the Court was bound to investigate under Section 224 of the Code of Civil Procedure. That section runs as follows: 'The following questions shall be determined by order of the Court executing a decree.' As we understand these words, we think they must be interpreted to mean the Court executing the decree at the time when the application is made; and that they do not include the Court which has executed the decree, and has thereby become functus officio. We were pressed with the case of Sheikh Ali Hossein v. Sheikh Muzhur Hossein 4 C.L.R. 577. That was a case decided under the old Code of Civil Procedure (Act VIII of 1859 read with Act XXIII of 1861). The facts of that case are not clearly stated either in the judgment, or in the statement of facts given by the reporter. Mr. Justice Broughton says: 'The payment of Rs. 1,275 by the judgment-debtor in December 1868 was a payment made in consequence of a decree having been passed against him, and an account having been made, showing that a balance of Rs. 732 was still due from him. That account was not a final one, but subject to revision, and appears to have been subsequently revised.' We are not in a position, therefore, to say what was the nature of the account in that case, and how far the decision itself is applicable as a precedent. The view which we take of the law is in accordance with the decision of the Madras High Court in the case of Ramanadan Chetti v. Kunnappu Chetti 6 Mad. H.C.R. 304. That also was a case under the old law. We think, however, that this question must now be determined with reference to the provisions of the new Code, and as Section 647 has made applicable to all proceedings other than suits or appeals, the provisions of the Code which are applicable to suits or appeals, we think, as already stated, that the only course open to the judgment-debtor was to apply for a review. We are then asked to treat this application of the 3rd July as an application for review, but we are of opinion that this course is not open to us. The appeal is therefore dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //