Skip to content


Bansori Lal Sarkar, Receiver to the Estate of Gostabehari Majumdar and Biswanath Majumdar Vs. Rabindra Nath Biswas (Minor), Judgment-debtor and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal131
AppellantBansori Lal Sarkar, Receiver to the Estate of Gostabehari Majumdar and Biswanath Majumdar
RespondentRabindra Nath Biswas (Minor), Judgment-debtor and ors.
Excerpt:
- .....october 1933. the present application for execution was presented on 19th september 1939, and the decree-holder sought to get round the bar of limitation by alleging that a previous application for execution was filed on 13th october 1936 which after several adjournments was struck off on 12th february 1937. the contention of the respondent was that no such application was filed, and even if it was filed it was not in accordance with law which could give an extension of time under article 182(5), limitation act. the trial judge held on evidence that there was in fact an application for execution in connexion with the aforesaid mortgage decree which was filed on 13th october 1936, but as there was no evidence to shew that it was made in accordance with law, the present application must.....
Judgment:

1. This appeal is on behalf of the decree-holder and it is directed against an order made by the Subordinate Judge of Nadia on 18th March 1940 dismissing the appellant's application for execution of a mortgage decree on the ground of limitation. One Gostha Behari Mazumdar, whose representative the appellant is, obtained a mortgage decree against the respondent in T.S. No. 19 of 1932 of the Court of the Subordinate Judge of Nadia on 23rd October 1933. The present application for execution was presented on 19th September 1939, and the decree-holder sought to get round the bar of limitation by alleging that a previous application for execution was filed on 13th October 1936 which after several adjournments was struck off on 12th February 1937. The contention of the respondent was that no such application was filed, and even if it was filed it was not in accordance with law which could give an extension of time under Article 182(5), Limitation Act. The trial Judge held on evidence that there was in fact an application for execution in connexion with the aforesaid mortgage decree which was filed on 13th October 1936, but as there was no evidence to shew that it was made in accordance with law, the present application must be held to be time-barred. It is against this order that the present appeal has been filed.

2. The learned advocate for the respondent has not seriously challenged before us the finding of the trial Court that an execution application was in fact filed by the appellant on 13th October 1936. The execution petition itself was destroyed under the rules, and no certified copy of it was in possession of the appellant. Exhibit G-1, which is alleged to be a copy made out of the execution petition, or rather a copy of the same by Rati Kanta Banerjee a pleader's clerk, who deposed for the appellant, has been rightly discarded by the Subordinate Judge. It appears clear however from Ex. J series that an application for execution in Title Suit No. 19 of 1932, was presented in the Court of the Subordinate Judge, Nadia, on 13th October 1936. The year 1933, as given in Ex. J, is obviously a mistake, as Exs. J1 and J2 would show. Exhibit J2 shows that the decree-holder filed a petition for proceeding with the execution case with D register in Title Suit No. 19 of 1932. Exhibits J4 and J5 further show that the decree-holder applied for time on 5th February 1937 and 12th February 1937.

3. Now the whole question is whether the application was in accordance with law. The Subordinate Judge is perfectly right in holding that there is no presumption in favour of the regularity of any such petition, and the entire burden is upon the decree-holder to show that the requirements of law were complied with. We think however that the evidence adduced by the appellant is quite sufficient to enable him to discharge the burden. The appellant's case is that as the decree was in respect of an equitable mortgage, the executing Court passed orders directing the decree-holder to file the documents of title deposited by way of security as well as certain extracts from D register relating to the revenue paying properties. The extracts from D register were filed on 10th December 1936 and then adjournment was prayed for filing the documents of title. Altogether four adjournments were given and on 12th February 1937 the case was dismissed, the documents not being filed even at that time. Ordinarily we would have considerable hesitation in relying upon the oral testimony of the plaintiff's own men, on a matter like this, but the oral evidence seems to us to be substantially corroborated by two contemporaneous letters Exs. E and E2 which were written by Rati Kanta the pleader's clerk to the decree-holder, and against the genuineness of which nothing has been suggested on behalf of the respondents.

4. As the execution was in respect of a mortgage decree, it was not necessary to file a list of properties under Order 21, Rules 12 and 13, Civil P.C. As the preliminary decree was filed along with the petition, all particulars relating to the mortgaged properties could be gathered from the decree, and the omission to file the documents that were deposited by way of security could not possibly disable the Court from proceeding with execution. It is rather curious, and this has been noticed by the Subordinate Judge in his judgment, that the preliminary decree mentioned separately the different documents of title relating to the mortgaged properties, although the properties themselves were specifically enumerated in the decree. In these circumstances, the Court might have been justified in directing the mortgagees to file the documents that were mentioned in the decree, but the omission to file these documents could not be held to be a defect in the application which would prevent the Court from proceeding with the application and selling the mortgaged properties, full particulars of which were given in the decree attached to the application. The impression of date seals on copies of the decrees would show that they were filed along with the petition on 13th October 1936. We hold therefore that the application for execution which was filed on 13th October 1936 was an application in accordance with law. The present application for execution is therefore within time. The result is that the appeal is allowed and the order of the trial Court set aside. The Court is directed to proceed with the execution of the decree. No order as to costs.


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