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Harapriah Debi Vs. Goluck Chandra Mytee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal559
AppellantHarapriah Debi
RespondentGoluck Chandra Mytee
Cases ReferredMusharraf Begam v. Ghalib Ali I.L.R.
Excerpt:
execution of decree - limitation--civil procedure code (act xiv of 1882), section 230. - .....decree sought to be executed is one for money, and it was passed more than twelve years before the present application was made. it appears that under the late code of civil procedure (act x of 1877), an application was made to execute it, which application was granted.3. it is contended by the judgment-debtor in the present instance that, by the terms of the last paragraph of section 230 of the present code, the application is barred, because, had the present code not been passed, and had the code of 1877 as amended by act xii of 1879 been still in force, the decree in question would have been barred under the provisions of the corresponding section.4. the last paragraph of section 230 of the present code allows proceedings to be taken to enforce any decree within three years after the.....
Judgment:

Tottenham, J.

1. The point before us in this appeal is as to the proper construction of Section 230 of the Code of Civil Procedure.

2. The decree sought to be executed is one for money, and it was passed more than twelve years before the present application was made. It appears that under the late Code of Civil Procedure (Act X of 1877), an application was made to execute it, which application was granted.

3. It is contended by the judgment-debtor in the present instance that, by the terms of the last paragraph of Section 230 of the present Code, the application is barred, because, had the present Code not been passed, and had the Code of 1877 as amended by Act XII of 1879 been still in force, the decree in question would have been barred under the provisions of the corresponding section.

4. The last paragraph of Section 230 of the present Code allows proceedings to be taken to enforce any decree within three years after the passing of the Code, 'unless when the period prescribed for taking such proceedings by the law in force immediately before the passing of this Code shall have expired before the completion of the said three years.'

5. For the decree-holder it is contended upon the authority of the decision of a Full Bench of the Allahabad High Court in Musharraf Begam v. Ghalib Ali I.L.R. 6 All. 189 that the words, 'the law in force immediately before the passing of this Code,' refers exclusively to the Limitation Act, XV of 1877, and not to any other law dealing with the present subject.

6. The majority of the Allahabad Full Bench held that the former Code of 1877 could not be taken into consideration as forming part of 'the law in force immediately before the passing of this Code.' That at least is the practical effect of the decision. The Courts below have acted upon this ruling of the Allahabad High Court, there being nothing to the contrary in the reported cases decided by the Calcutta High Court. But with all respect for the majority of the Allahabad Full Bench we find ourselves altogether unable to assent to the ruling in question. It is quite true that the law in force immediately before the passing of the Code of 1877 on this subject was the law of limitation and nothing else; but it appears to us that the words, 'the law in force immediately before the passing of this Code,' used in the corresponding section of the present Code, cannot now be limited to that particular Act of limitation. It seems to us that 'the law in force' means the whole law on the subject.

7. There is no dispute that if the old Code had remained in force the present application could not have been entertained. The majority of the Allahabad Full Bench expressed the opinion that there was nothing in the third paragraph of Section 230 which prescribes a period for taking proceedings. We find it impossible to hold that the following words of paragraph 3 'no subsequent application to execute the same decree shall be granted after the expiration of twelve years,' do not prescribe a period within which proceedings must be taken. It appears to us that they prescribe the period of twelve years.

8. We may note that Article 179 of the second schedule of the Limitation Act upon which the decree-holder himself relied is by its terms not applicable to any case provided for by Section 230 of the Code of Civil Procedure, and as according to our reading of that section the present case clearly falls under it, it follows that Article 179 does not apply; and the application not being made within the period prescribed by that section it was barred.

9. That being so, we must set aside the order of the lower Court and dismiss the application with costs.

O'Kinealy, J.

10. I am also of the same opinion, and as I differ from the opinion expressed by a majority of the Judges of the Full Bench of the Allahabad High Court, I think it due to those learned Judges that I should give my reasons for so differing.

11. The decree is dated the 5th of July 1872. After the Code of 1877 was passed an application for execution was made and granted on the 19th January 1881. It is not denied, and it appears to me that it cannot be disputed, that, under Section 230 of the Code of 1877, if that Code had remained in force, the present application would be barred, admittedly barred, on the 6th of July 1884. Therefore, according to the period allowed by the law in force before the passing of the present Code, Act XIV of 1882, the decree was barred in July 1884. The present application was made on the 10th of November 1884.

12. It is argued that this application is saved by the last clause of Section 230 of the present Code, which runs as follows: 'Notwithstanding anything herein contained proceedings may be taken to enforce any decree within three years after the passing of this Code, unless when the period prescribed for taking such proceedings by the law in force, immediately before the passing of this Code, shall have expired before the completion of the said three years.' It is said that the words 'the law in force' in this clause have a. technical meaning. They do not mean the law in force but only such portion of it as is to be found in the Limitation Act. Why this limited portion of the law then in force should be selected as adequately covering the words, I cannot clearly understand. Before the present Code the law of limitation was, so far as I can see, partly in the Limitation Act and partly in the third paragraph of Section 230 of the old Code, which was expressly excluded from the operation of the Limitation Act by Article 179, Schedule II of that Act. The only way in which this view can be supported is by assuming that the words 'law in force' had acquired a technical meaning before the present Code was passed, and meant the laws in force before the passing of Act X of 1877, and not the laws in force before the passing of the present Code. But so far from believing that the words have any technical meaning, I think they are used in their popular and ordinary sense, and when so construed they present no ambiguity. I think they mean what an ordinary individual would consider they mean, the whole law in force before Act XIV of 1882 was passed.

13. I feel, therefore, constrained to hold that, as has already been pointed out by my learned brother, the application was barred and should have been dismissed in the Court below.


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