Skip to content


Hurry Charan Bose Vs. Subaydar Sheikh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal161
AppellantHurry Charan Bose
RespondentSubaydar Sheikh
Cases ReferredSyud Mahomed v. Syud Abedoollah
Excerpt:
execution of decree - limitation--application for execution of decree for arrears of rent--proper application--civil procedure code (act xiv of 1882), sections 235, 237, 245. - .....barred by limitation before that date. upon these two grounds the district judge has reversed the munsif's decision.6. we are of opinion that upon both these points the decision of the district judge is not correct. the petition of the 14th june, no doubt, was not in strict accordance with the provisions of section 237. it did not give a sufficient description of the property of the judgment-debtor as required by section 237; but at the same time it did state that a specification of the property sought to be attached existed in the previous execution case no. 30 of 1884. no doubt that was a defect, because it was not a strict compliance with the provisions of section 237; but merely because there was this defect it does not follow that it was not an application at all under section 235......
Judgment:

Mitter and Macpherson, JJ.

1. The question which we have to determine in this case is whether the decree dated the 14th June 1881 is barred by limitation. It is a decree passed under the Rent Act, and the amount decreed is less than Rs. 500, and therefore the special limitation laid down under Section 58 of that Act will apply to this case. Now, the provisions of the corresponding section of Act X of 1859 were considered in a Full Bench decision in the case of Rhidoy Krishna Ghose v. Kailas Chandra Bose 4 B.L.R.F.B. 82. According to that decision the decree-holder would be in time if he makes the application for the issue of process of execution within three years from the date of the decree. In this case, on the 14th June 1884, that is within three years from the date of the decree, an application for execution was filed. At foot of that application it was stated that this decree having been executed in No. 30 of 1884, the petitioner was substituted for the original decree-holder and after notice to the judgment-debtors the execution proceedings were struck off. Appellant prayed that that record might be placed with this application, and that the moveable property stated in that record might be attached and sold and the money due under the decree realized.

2. For the realization of so much of the decree as was not satisfied he prayed that the judgment-debtor might be arrested, and the moveable property in his possession attached and sold.

3. This application was ordered to be registered on the 12th July following, but it appearing that there was no proper specification at foot of the application of the properties to be attached as required by Section 237, the Munsif allowed this defect to be remedied by an amendment which was made on the 9th August following, and a list containing a specification of the properties sought to be attached having been filed before the Munsif, he directed that the amendment be made, but the judgment-debtor contended before the Munsif that at the time when the amendment was ordered to be made the decree was barred by limitation.

4. The Munsif overruled this objection.

5. On appeal the District Judge has reversed the judgment of the Munsif. He is of opinion that the original petition of the 14th June 1884 not being in accordance with the provisions of Section 237, was no application at all, and that the Court had no power to allow the amendment on the 9th of August as the decree had been barred by limitation before that date. Upon these two grounds the District Judge has reversed the Munsif's decision.

6. We are of opinion that upon both these points the decision of the District Judge is not correct. The petition of the 14th June, no doubt, was not in strict accordance with the provisions of Section 237. It did not give a sufficient description of the property of the judgment-debtor as required by Section 237; but at the same time it did state that a specification of the property sought to be attached existed in the previous execution case No. 30 of 1884. No doubt that was a defect, because it was not a strict compliance with the provisions of Section 237; but merely because there was this defect it does not follow that it was not an application at all under Section 235. In this view we are supported by the decision of this Court in Syud Mahomed v. Syud Abedoollah 12 C.L.R. 279. That decision also is an authority for the proposition that the Court has power to allow an amendment under Section 245, although it may be that at the time when the amendment is allowed the decree is barred by limitation.

7. Upon both these points the decision cited above is an authority in favour of the contention of the appellant. We, therefore, set aside the judgment of the lower Appellate Court and restore that of the Munsif with costs.

8. When the case goes back the Munsif will take care that execution does not issue against any property not mentioned in the petition of the previous execution case No. 30 of 1884.


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