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Golokemoney Dabia and ors. Vs. Mohesh Chunder Mosa and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal548
AppellantGolokemoney Dabia and ors.
RespondentMohesh Chunder Mosa and anr.
Cases ReferredLalla Ram Sahoy v. Dodraj Matho
Excerpt:
application for execution of decree for arrears of rant - limitation--proper application--circular order, 10th july 1874--beng. act viii of 1809. section 08. - .....proceedings but a continuation of the old proceedings. if that be so, then, according to the full bench decision, it is incumbent upon us to hold that they are not barred.3. the district judge has relied upon the terms of a circular order of this court. we do not at all wish to weaken the effect of anything which is stated in that circular order. that circular order does not and could not affect the law as laid down by the full bench decision. notwithstanding anything which is contained in that circular order, the question must be decided in the same way, viz., by inquiring whether the application made for execution upon which proceedings were had, was made within three years from the date of the decree.4. the vakeel for the respondents has also relied upon a decision in lalla ram sahoy.....
Judgment:

Markby, J.

1. In this case we think that the decision of the Munsif and of the District Judge was wrong, and that execution ought to have been allowed to issue.

2. Now the Full Bench have laid down in a case 4 B.L.R. F.B. 82 : S.C. 13 W.R. F.B. 3, and that decision is binding upon us, what the true construction of the section is which imposes a term of limitation of three years upon a judgment-creditor when applying for execution. The effect of that decision is stated in the judgment of Mr. Justice Macphehson, who says that 'the words should he considered as meaning that execution shall not issue unless a proper application for execution is made within three years from the date of the judgment.' That I understand to be the decision of the majority of the Judges of the Full Bench. That being so, the real question which we have to determine in this case is whether the proceeding of the 17th March 1876 was a new and substantive application for execution, or whether it was merely a step taken by the judgment-creditors in furtherance of the execution for which they applied, and applied successfully on the 5th July 1875. Now one of the facts to be noticed in this case is that the proceedings which took place on the 17th March 1876 and subsequent proceedings were all under the original number which was borne by the proceedings of 1875. I do not say that that was conclusive in the matter, but it certainly goes to show that the proceedings which followed upon the application of the 17th March 1876 were not proceedings upon a new execution then for the first time issued, but steps taken in furtherance of the original application. And under all the circumstances of this case, we think that we arc justified in saying that the steps taken for the arrest of the judgment-debtors in March 1876 were not new proceedings but a continuation of the old proceedings. If that be so, then, according to the Full Bench decision, it is incumbent upon us to hold that they are not barred.

3. The District Judge has relied upon the terms of a circular order of this Court. We do not at all wish to weaken the effect of anything which is stated in that circular order. That circular order does not and could not affect the law as laid down by the Full Bench decision. Notwithstanding anything which is contained in that circular order, the question must be decided in the same way, viz., by inquiring whether the application made for execution upon which proceedings were had, was made within three years from the date of the decree.

4. The vakeel for the respondents has also relied upon a decision in Lalla Ram Sahoy v. Dodraj Matho 20 W.R. 395. All that is necessary for us to say upon that decision is this that the question of delay on the part of the judgment-creditors is not anywhere referred to by the Full Bench. It may be that the question of delay on the part of the judgment-creditors may in some cases be useful in assisting the Court to determine whether an ambiguous proceeding is a fresh application for execution or a step taken in futherance of a previous application. But there is nothing which will authorize us to import into the law of limitation the question of diligence on the part of the judgment-creditors as a substantive portion of that law.

5. We think that the decision of the District Judge must be set aside, and the money deposited by the judgment-debtors must be paid out to the decree-holders. The decree-holders will be entitled to their costs in this Court and the Courts below.


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