Skip to content


Abdul HosseIn Vs. Fazilun - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal255
AppellantAbdul Hossein
RespondentFazilun
Cases ReferredNukanna v. Ramasami I.L.R.
Excerpt:
limitation act, 1877, schedule ii., article 179, clause 4 - execution of decree--step in aid of execution. - .....v. ramasami i.l.r. 2 mad. 218 at first sight seemed to be applicable. there an application to stay the sale and continue the attachment was held to be a step which would keep the decree in force. that decision was, however, under the old limitation act, the language of which is different from that of the present act. some cases have also been cited from the allahabad series, but they do not appear to us to affect the present question. the mere continuance of the attachment in the present case, even supposing that to be a substantive application apart from the other prayers contained in it, had merely the effect of leaving things precisely as they were, and not advancing the execution in any respect whatsoever.2. there is a further question whether the execution of the decree is not.....
Judgment:

Macpherson and Banerjee, JJ.

1. The only question in this appeal is whether the appellant's application of the 7th March 1887 had the effect of keeping the decree alive. Both Courts have held that it had not, and, we think, rightly. The application in question was put in on the day on which some of the properties were to he sold under the proclamation issued. By it the appellant asked the Subordinate Judge to remove the attachment from a portion of the property which was to be sold, to continue the attachment on the remaining portion, and to strike the case off the file. We cannot regard this as an application to take a step in aid of the execution of the decree. It was rather an application which had the effect temporarily at all events of retarding the execution. Without going so far as to say that no case could occur in which an application which had that effect might not still he in furtherance of execution at some future period, we may say that this was not the case here. There is nothing in the nature of the application to show that it would have that effect, or that it was in any way either immediately or in the future in aid of the execution of the decree. No decision of this Court which has any bearing on the present case has been cited to us. The case of Nukanna v. Ramasami I.L.R. 2 Mad. 218 at first sight seemed to be applicable. There an application to stay the sale and continue the attachment was held to be a step which would keep the decree in force. That decision was, however, under the old Limitation Act, the language of which is different from that of the present Act. Some cases have also been cited from the Allahabad series, but they do not appear to us to affect the present question. The mere continuance of the attachment in the present case, even supposing that to be a substantive application apart from the other prayers contained in it, had merely the effect of leaving things precisely as they were, and not advancing the execution in any respect whatsoever.

2. There is a further question whether the execution of the decree is not also barred by a compromise between the parties. In the view which we take on the question of limitation it is unnecessary to consider this. The appeal is dismissed with costs.


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