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Napal Chandra Sadookhan Vs. Amrita Lall Sadookhan and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal889
AppellantNapal Chandra Sadookhan
RespondentAmrita Lall Sadookhan and anr.
Cases ReferredDulichand Bhudar v. Bai Shivkor
Excerpt:
limitation act (xv of 1877), schedule ii, article 179, clause (4) - step in aid of execution--application for execution 'not in accordance with law'--subsequent application for execution--objection to the previous application. - .....costs was proceeded with, and the amount realised. the present application for execution of the decree for possession of the immoveable property was made on the 21st april 1897, and the judgment-debtor contends that the whole decree, not having been executed when the decree-holders in december 1894 took out execution for costs, the present application for recovery of possession is too late. i do not think it is. the application for execution for the costs was one to take some step in aid of execution, and seeing that the judgment-debtor raised no objection at the time to the decree being executed piecemeal--not, i admit, a desirable way of executing a decree--it does not now lie in his mouth to say that application was not in accordance with law. this view is in accordance with that.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. The first objection taken by the appellant is that the present application for execution of the decree is out of time. I do not think it is. The decree was for costs and for delivery of possession of certain immoveable property. The decree was made on the 15th March 1891, and an application for execution of the decree in respect of the costs was made on the 10th December 1894. The application for execution, on the face of it, distinctly stated that the decree-holders would afterwards apply for delivery of possession of the land. No objection was taken by the judgment-debtor at the time to this method of procedure on the part of the decree-holder, or that he ought not to be allowed, for execution purposes, to split up his decree, or rather execute it piecemeal. Execution for costs was proceeded with, and the amount realised. The present application for execution of the decree for possession of the immoveable property was made on the 21st April 1897, and the judgment-debtor contends that the whole decree, not having been executed when the decree-holders in December 1894 took out execution for costs, the present application for recovery of possession is too late. I do not think it is. The application for execution for the costs was one to take some step in aid of execution, and seeing that the judgment-debtor raised no objection at the time to the decree being executed piecemeal--not, I admit, a desirable way of executing a decree--it does not now lie in his mouth to say that application was not in accordance with law. This view is in accordance with that expressed by the Bombay High Court in the case of Dulichand Bhudar v. Bai Shivkor (1890) I.L.R., 15 Bom., 242.

2. The first point fails.

3. As regards the other two points, viz., that the property is not properly described, and that the decree is incapable of execution, I do not propose to say anything more than that I agree with the view taken of them by both the lower Courts. The appeal must be dismissed with costs.

Banerjee, J.

4. I concur.


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