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Hari Badani Dasi and anr. Vs. Gobinda Chandra Das and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.118
AppellantHari Badani Dasi and anr.
RespondentGobinda Chandra Das and ors.
Cases ReferredHafizuddin Chowdhry v. Abdool Aziz
Excerpt:
limitation act (xv of 1877), schedule ii, article 179, clause (4) - step-in-aid of execution--application by executor of decree-holder when probate had not been obtained. - .....of the original decree-holder, though probate had not then been obtained. either for this defect or for some other defect which is not quite clear from the record, the application was rejected. but it was, in form, a proper application and at all events, it was a step taken in aid of execution. the mere fact that one of the applicants had not obtained probate would not justify a court in rejecting the application. as an authority for this proposition, we may refer to the case of hafizuddin chowdhry v. abdool aziz 20 g. 755.2. we are of opinion that the present application which was presented on the 15th april 1907 was not barred by limitation. we accordingly send the case to the court of first instance for execution being proceeded with.
Judgment:

1. On the facts appearing on the record, it appears to us that the lower Courts were wrong in holding that the present application for execution was barred by limitation. The decree was passed on the 23rd May 1898. Applications for execution were made several times and the final application was made on the 16th April 1904. That application was made by the executors of the original decree-holder, though probate had not then been obtained. Either for this defect or for some other defect which is not quite clear from the record, the application was rejected. But it was, in form, a proper application and at all events, it was a step taken in aid of execution. The mere fact that one of the applicants had not obtained probate would not justify a Court in rejecting the application. As an authority for this proposition, we may refer to the case of Hafizuddin Chowdhry v. Abdool Aziz 20 G. 755.

2. We are of opinion that the present application which was presented on the 15th April 1907 was not barred by limitation. We accordingly send the case to the Court of first instance for execution being proceeded with.


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