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Munsur Ali Vs. Abhoya Charan Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.816
AppellantMunsur Ali;nizamat Ali
RespondentAbhoya Charan Das;mia Jan Sikdar
Cases ReferredIndian Limitation Act Beti Maharani v. Collector of
Excerpt:
limitation act (ix of 1908), section 15 - attachment of decree before judgment, whether stay of execution--set-off of statute-barred decree, whether allowable--forms given in schedule to civil procedure code, whether control code itself--civil procedure code (act v of 1908), order xxi, rule 53(1)(b)(ii), order xxxviii, rule 6. - .....was barred by-limitation but it was equitable to allow the respondent to set off his statute barred decree against the appellant's decree. two points were urged on the appeal before us, first, was the execution of the respondent's decree stayed by an injunction or order within the meaning of section 15 of the indian limitation act and secondly, if not, is the respondent entitled to set off his statute-barred decree against the decree of the appellant.3. it is well established that an attachment before judgment is not an injunction or order within the meaning of section 15 of the indian limitation act beti maharani v. collector of 17 a. 198 : 22 i.a. 31 : 6 sar. p.c.j. 551 : 8 ind. dec. (n.s.) 452.4. it is said, however, that different considerations arise when the subject-matter of.....
Judgment:

Fletcher, J.

1. This is an appeal from an order of the District Judge of Noakhali, reversing the order of the Munsif of the 2nd Court at Sudharam. The admitted facts are as follows :-- The respondent to this appeal on the 5th of November 1908 obtained a decree absolute for Rs. 847 in a mortgage suit against the appellant. The appellant having instituted a suit against the respondent attached this decree before judgment on the 7th of April 1909. On the 30th September 1909, the appellant obtained a decree against the respondent for Rs. 851. On the 7th of September 1909, the appellant applied that both decrees should be set off one against the other but this application was on the 26th of January 1911 rejected as premature. The appellant applied on the 20th November 1913 for execution of his decree.

2. The learned District Judge held that the decree of Me respondent was barred by-limitation but it was equitable to allow the respondent to set off his Statute barred decree against the appellant's decree. Two points were urged on the appeal before us, first, was the execution of the respondent's decree stayed by an injunction or order within the meaning of Section 15 of the Indian Limitation Act and secondly, if not, is the respondent entitled to set off his Statute-barred decree against the decree of the appellant.

3. It is well established that an attachment before judgment is not an injunction or order within the meaning of Section 15 of the Indian Limitation Act Beti Maharani v. Collector of 17 A. 198 : 22 I.A. 31 : 6 Sar. P.C.J. 551 : 8 Ind. Dec. (N.S.) 452.

4. It is said, however, that different considerations arise when the subject-matter of the attachment is a decree. But this is clearly not so as Order XXI, Rule 53(1)(b)(ii), clearly authorises the creditor who has attached the decree or his judgment-debtor to proceed to execute the attached decree. It is said that the forms in the Schedule to the Code of Civil Procedure support a different view. But even if that were so, the forms cannot control the clear words of the Statute itself. The respondent then argued that the fact of the attachment being before judgment made a difference but the terms of the Rules of Order XXXVIII do not support the argument.

5. On the second point, reliance was placed on decisions of this Court where on equitable grounds a defendant in a suit has been allowed to set off a Statute-barred debt against the claim of a plaintiff. Those considerations cannot, I think, apply in execution of cross-decrees. This form of execution is given by the Code of Civil Procedure and no equitable considerations can add to or detract from the provisions of the Statute. In my opinion the order of the learned District Judge should be set aside and the order of the Munsif restored with costs both here and in the Courts below. We' assess the hearing fee at Rs. 25.

Richardson, J.

6. I agree.

7. The same points are involved in this appeal as in Miscellaneous Appeal No. 443 of 1915 which has just now been disposed of by us, except that the learned District Judge did rot allow the barred decree to be set off against the decree for which execution was applied for.

8. The appeal fails and must be dismissed with costs. We assess the hearing fee at Rs. 25.


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