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Ahad Bux Jamadar Vs. Kinkar Chandra Pal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal640,158Ind.Cas.590
AppellantAhad Bux Jamadar
RespondentKinkar Chandra Pal
Cases ReferredHazari Lal v. Baidynath Shaha
Excerpt:
- 1. this appeal has arisen out of an application for execution of a decree passed by the small cause court, calcutta, on 28th june 1929. the decree passed by the small cause court was an instalment decree; and an instalment in accordance with the terms of the decree was paid by the judgment-debtor on 18th august 1930. the application for execution of the decree giving rise to this appeal was made by the decree-holder on 3rd november 1933. an objection was raised on behalf of the judgment.debtor to the execution of the decree, and it was asserted on the side of the judgment-debtor that the application for execution was barred by limitation. it appears that an application was made by the decree-holder to the court of small causes, calcutta, on 27th february 1932, and the question before the.....
Judgment:

1. This appeal has arisen out of an application for execution of a decree passed by the Small Cause Court, Calcutta, on 28th June 1929. The decree passed by the Small Cause Court was an instalment decree; and an instalment in accordance with the terms of the decree was paid by the judgment-debtor on 18th August 1930. The application for execution of the decree giving rise to this appeal was made by the decree-holder on 3rd November 1933. An objection was raised on behalf of the judgment.debtor to the execution of the decree, and it was asserted on the side of the judgment-debtor that the application for execution was barred by limitation. It appears that an application was made by the decree-holder to the Court of Small Causes, Calcutta, on 27th February 1932, and the question before the Court below was whether a further period of limitation would run from the date of the order passed on the said application for transmission of the decree for execution.

2. On the materials there can be no question that the application on which the order for transmission was made on:27th February 1932 was an application for transfer of the decree for execution, to the Court of the Munsif at Amta in the district of Howrah. The order for transmission of the decree was passed by the Court passing the decree and the question therefore was whether the application made by the decree-holder on 27th February 1932, on which the order was made for transmission of the decree was a step-in-aid of execution, as contemplated by 01. (2) of Article 182, Schedule 1, Lim. Act. The Courts below have answered the question raised before them in the affirmative in favour of the decree-holder.

3. The judgment-debtor appealed to this Court. In support of the appeal reliance was placed on a decision of this Court in Hazari Lal v. Baidynath Shaha, 1922 Cal 3 in which it was held that an application for issue of notice under Order 21, E. 22, Civil P. 0., to the Court, to which an application had already been made for transfer of the decree to another Court, could not be treated as a step-in-aid of execution as contemplated by the provisions of the Limitation Act to which reference has been made above. The case therefore cited above could have no application to the facts of the present case. The expression step-in-aid of execution' must be taken to be intended to cover every application made by the decree-holder in accordance with law, setting the Court in motion to execute the decree and in furtherance of the proceeding in' execution. In that view of the matter, the application made for transfer of the decree from one Court to another for the purpose of execution, must be deemed to be an application to keep the decree in force and is in that way a step-in-aid of execution. In this view of the case before us, the appeal must be dismissed, and the decisions arrived at by the Courts below upheld. The appeal is dismissed with costs. Hearing fee is assessed at two gold mohurs.


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