Skip to content


Jagannath Khan Vs. Brojonath Pal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal580
AppellantJagannath Khan
RespondentBrojonath Pal
DispositionAppeal allowed
Excerpt:
limitation act (xv of 1877) article 179, clause 4 - seal warrant--application for, in the presidency small cause court--whether such an application it an application in accordance with law for execution or to take steps in aid of execution. - .....case. the subordinate judge has refused execution, holding that it is barred by limitation. the decree-holder appeals to this court.2. the decree which it is sought to execute was passed by the calcutta small cause court on the 16th august, 1891. application for a seal warrant was made to the court on the 4th august, 1894. the seal warrant was afterwards returned unexecuted.3. another similar application was made on the 30th july, 1897. the seal warrant then issued was also returned unexecuted. on the 24th january, 1897, the decree was transferred for execution to the district of faridpore, and application for execution was made to the subordinate judge.4. the subordinate judge has found that, as the proceedings in the small cause court show that, although the two applications for the.....
Judgment:

Rampini and Pratt JJ.

1. This is an appeal against the order of the Subordinate Judge of Faridpore passed in an execution case. The Subordinate Judge has refused execution, holding that it is barred by limitation. The decree-holder appeals to this Court.

2. The decree which it is sought to execute was passed by the Calcutta Small Cause Court on the 16th August, 1891. Application for a seal warrant was made to the Court on the 4th August, 1894. The seal warrant was afterwards returned unexecuted.

3. Another similar application was made on the 30th July, 1897. The seal warrant then issued was also returned unexecuted. On the 24th January, 1897, the decree was transferred for execution to the district of Faridpore, and application for execution was made to the Subordinate Judge.

4. The Subordinate Judge has found that, as the proceedings in the Small Cause Court show that, although the two applications for the issue of seal warrants were made more than one year after the passing of the decree, no notices under Section 248 were issued, and as the seal warrants could not be executed, the previous proceedings for execution in this case are all bad and null, and execution of the decree is now barred.

5. We think the Subordinate Judge is wrong. In the first place, we do not know how he finds that no notices under Section 248 were issued. We are told there is no record of the Small Cause Court proceedings, and the Subordinate Judge has only come to this conclusion because the decree-holder is not able to show that any notice under Section 248 was issued. That this was how the Subordinate Judge came to this conclusion appears probable from a portion of his judgment, in which he says: 'The proceedings of the Calcutta Small Cause Court do not show the issue of any: notice under that section (i.e., Section 248), and the decree-holder did not make any attempt to prove service of such notice. It may therefore be assumed that no such notice was served or applied for.'

6. But it does not appear that it is the duty of a decree-holder under the law to apply for the issue of a notice under Section 248, He has only to apply for execution. It is the duty of the Court in certain circumstances to issue the notice under Section 248. Hence, as there is a presumption, till the contrary is shown, that all legal proceedings are regularly conducted, it does not seem that the Subordinate Judge was justified in making the assumptionthat he says he has done.

7. Further, it does not seem to follow that the execution proceedings were bad and null, merely from the facts that they were in fructuous and that the seal warrants could not be executed. The decree-holder may have applied in accordance with law for execution, although his applications did not result in the satisfaction of his decree and raiment, to maintain the daughter-in(sic) warrants appear to us to have been and raiment, the legal oblig(sic) with laqw for execution or to take death as against the holders(sic) We are not aware that it is necessary death as against the holders(sic) all Cause Court decree, when seeking to make and would not give(sic) more than apply for the issue of a seal maintenance.(sic)achnment and sale of his debtor's property. In (sic) There is no (sic) applications would certainly seem to us to be present case (sic) made in accordance with law to take steps in aid as the (sic) execution. We accordingly hold that the execution of the decree in this case is not barred. We therefore allow this appeal, set aside the order of the Subordinate Judge, and direct that execution of the decree do now proced. This order carries costs.


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