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Hayatunessa Chowdhurani Vs. Achia Khatun - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1924Cal131
AppellantHayatunessa Chowdhurani
RespondentAchia Khatun
Cases ReferredAsgar Ali v. Troilokya Nath Ghose
Excerpt:
- walmsley, j.1. these two appeals are preferred by the decree-holder. the facts necessary for understanding the case are as follows : a preliminary decree upon a mortgage was passed on the 22nd november, 1907, allowing six months' grace to the mortgagor. on the application of the decree-holder, a final decree was made on the 4th of july, 1908; but the reliefs granted were not embodied in a formal decree in the form now prescribed by the new civil procedure code. the judge's order simply stated that the decree was made absolute as applied for. after various applications for execution, the application from which these appeals arise was presented on the 29th of june, 1920. the learned judge by his order of the 11th may, 1921, held that the application was barred by limitation. he over-ruled.....
Judgment:

Walmsley, J.

1. These two appeals are preferred by the decree-holder. The facts necessary for understanding the case are as follows : a preliminary decree upon a mortgage was passed on the 22nd November, 1907, allowing six months' grace to the mortgagor. On the application of the decree-holder, a final decree was made on the 4th of July, 1908; but the reliefs granted were not embodied in a formal decree in the form now prescribed by the new Civil Procedure Code. The Judge's order simply stated that the decree was made absolute as applied for. After various applications for execution, the application from which these appeals arise was presented on the 29th of June, 1920. The learned Judge by his order of the 11th May, 1921, held that the application was barred by limitation. He over-ruled several objections preferred by the judgment-debtor; but when he came to the last point which was to the effect that the application was presented more than 12 years after the date of the decree, he allowed that, and on that ground, dismissed the application for execution. The learned pleader who appears for the respondent, the judgment-debtor, has tried to uphold this order, first, on the ground that time must run from the date of the preliminary decree and, secondly, on the ground that the decree-holder ought to have obtained a fresh decree before he could proceed to realize the debt by proceeding against properties other than the mortgaged properties. It appears to me that there is no substance in either of these arguments. The preliminary decree was incapable of execution and before the Civil Procedure Code of 1908 came into force, it was often the case that decrees absolute were drawn up in an informal manner. Inasmuch, therefore, as the preliminary decree could not be executed, time must begin to run from the date of the final decree, however informally it was expressed. As to the second contention, there is no warrant for the view that a fresh decree was necessary before the decree-holder was entitled to enforce his decree against properties other than those mentioned in the decree. In my opinion, 3 therefore, the appeal against the order of the 11th May, 1921, that is, Appeal No. 336 of 1921, should be allowed.

2. Then we come to the earlier appeal No. 399 of 1920. That is an appeal against, the order of the 24th August, 1920 The decree-holder made his application, as already mentioned, on the 29th of June, 1920 in which he mentioned certain properties against which he wanted to proceed. On the 21st August, he put in a petition asking for permission to be allowed to add several other properties to the' list given in his original application. The learned Judge held that he was not entitled; to do so. On behalf of the appellant, our attention has been drawn to the case of Gnanendra Kumar Roy Choudry v. Rishendra Kumar Roy (1918) 22 Cal. W.N. 540. The circumstances of that case appear to me to be-very different from those in the present, case, and I think we ought to follow the principles laid down in the Pull Bench decision of Asgar Ali v. Troilokya Nath Ghose (1890) 17 Cal. 631 (F.B.). Consequently, in my opinion,.. appeal No. 399 of 1920 against the order of the 24th August, 1920, should be dismissed.

3. The result of both orders will be that the decree-holder will be entitled to proceed with his application for execution against the properties mentioned in the application as it was at the time of presentation on the 29th of June, 1920. As success is equally divided between the parties, there will be no order as to costs.

Ghose, J.

4. I agree.


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