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Fuzloor Ruhman Vs. Altaf Hossen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal541
AppellantFuzloor Ruhman
RespondentAltaf Hossen and ors.
Cases ReferredSyud Mahomed v. Syud Abedoollah
Excerpt:
decree, execution of - step in execution of decree--informal application for execution--limitation act (act xv of 1877), schedule ii, article 179. - .....court. but these are differences upon points which are not essential. the principle upon which the decision cited proceeded was that, as it was the duty of the court to dismiss the application when it found that it was informal, and, as the court did not so dismiss it, the decree-holder ought not to suffer for the omission on the part of the court to dismiss the application; and the reason assigned for this is that, if the court had done its duty and dismissed the application, the decree-holder might have put in a proper application on the next day. applying the same principle here, if, on the 19th of january, which in that case was within time, or on the expiration of four days from that date the application had been refused, the decree-holder would have been in time to make a fresh.....
Judgment:

Mitter, J.

1. In this case an application for execution of the decree of the Appellate Court, which was passed in the month of February 1879, was made on the 19th January 1882. The petition did not contain the right number of the suit in which the decree was passed, and an order was made on the 19th January, directing the petitioner to amend the petition by giving the right number within four days. This order was not complied with, but notwithstanding the petition was left on the record of the Court without being disposed of in any way. It was brought up again on the 21st September 1882, and on that date it was returned to the vakil of the petitioner to amend it by giving the correct number of the suit within eight days from that date. The required amendment, however, was made on the day following, viz., on the 22nd September 1882, and the application was put upon the record again. Thereupon the Court directed it to be registered and ordered notice to issue. It is quite clear that if the application be considered to have been made on the 22nd of September, the decree would be barred by limitation as it was more than three years from the date of the decree. If, on the other hand, the application is to be considered as having been made on the 19th January 1882, it would be within time. The lower Courts have decided in favour of the decree-holder. The objection taken before us in appeal is, that under the circumstances stated above the lower Court should have held that the application was really made only on the 22nd September 1882, and therefore was barred by limitation. Our attention has been called to a decision in the case of Syud Mahomed v. Syud Abedoollah 12 C.L.R. 279 and although the facts of that case are not exactly similar to those of the present, yet the principle upon which that decision proceeds seems to us to be applicable here. The only difference that we can find in the facts is that, in the case under consideration, there was originally an order requiring the appellant to amend the application within four days, whereas in the case cited there was no limit fixed by the Court requiring the petitioner to amend the application. There is also another difference in the facts, viz., that in the case now before us the petition was actually returned to the vakil for amendment, while in the case cited the petition always remained on the file of the Court. But these are differences upon points which are not essential. The principle upon which the decision cited proceeded was that, as it was the duty of the Court to dismiss the application when it found that it was informal, and, as the Court did not so dismiss it, the decree-holder ought not to suffer for the omission on the part of the Court to dismiss the application; and the reason assigned for this is that, if the Court had done its duty and dismissed the application, the decree-holder might have put in a proper application on the next day. Applying the same principle here, if, on the 19th of January, which in that case was within time, or on the expiration of four days from that date the application had been refused, the decree-holder would have been in time to make a fresh application in proper form. Therefore, it seems to us that the Court not having dismissed the application on the expiration of the four days allowed by it, and allowed the petition to remain on the file, the case comes within the purview of the decision cited. As to the other difference it is no difference at all, because, instead of allowing the vakils to amend the petition while it was on the file of the Court, the Court simply allowed the vakil to take it away and to amend it within the time given by the Court. That would not make any difference as to the application of the principle upon which the decision cited was passed. That being so, and it not being shown that the decision cited does not correctly lay down the law, we dismiss these appeals but without costs.


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