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Chowdhry Paroosh Ram Das and anr. Vs. Kali Puddo Banerjee and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal53
AppellantChowdhry Paroosh Ram Das and anr.
RespondentKali Puddo Banerjee and anr.
Cases ReferredUmbica Pershad Singh v. Surdhan Lull I.L.R.
Excerpt:
limitation act, 1877, schedule ii, article 179 - application to execute decree--step in aid of execution--application for sale of property under attachment. - .....in that property except that the malikana due to the debtors was to be paid into court for the decree-holder. we must take it that the share of those debtors was under attachment in execution of this decree, and that the intervention of the receiver was for the benefit of the debtors and to avert the sale which would ordinarily have followed that attachment. the transfer of a share of the debtors' property by sale to the appellants' ancestor was apparently not known to the court or to the decree-holder, for the name of the vendee does not appear on the proceedings. nevertheless it is not denied that, at least up to 1882, payments from time to time of the malikana share of the debtors, including that sold to the appellants, were paid away to the decree-holder towards satisfaction of.....
Judgment:

Prinsep and Hill, JJ.

1. The decree which is now under execution is a very old decree, having been passed in December 1851. It is unnecessary to detail all the proceedings taken in execution except those of somewhat recent date. It is sufficient to say that a share of the property belonging to the appellant, against which execution is sought was, on the 7th September 1859, sold to his ancestor. Whether the property was then under attachment is not clear; but we learn that, in the year 1860, the property was, under Section 243, Act VIII of 1859, placed in the hands of a Receiver, who was directed to pay the malikana allowance to the several sharers in that property except that the malikana due to the debtors was to be paid into Court for the decree-holder. We must take it that the share of those debtors was under attachment in execution of this decree, and that the intervention of the Receiver was for the benefit of the debtors and to avert the sale which would ordinarily have followed that attachment. The transfer of a share of the debtors' property by sale to the appellants' ancestor was apparently not known to the Court or to the decree-holder, for the name of the vendee does not appear on the proceedings. Nevertheless it is not denied that, at least up to 1882, payments from time to time of the malikana share of the debtors, including that sold to the appellants, were paid away to the decree-holder towards satisfaction of the decree. We must therefore take it that the attachment continued, and that, at least for a very long series of years, all the parties concerned considered that the share which originally belonged to the debtors was liable in satisfaction of the decree against them.

2. The decree-holder, on 30th November 1887, applied for sale of this share of the property under attachment and the only objection raised before us is that execution is barred by limitation. We may first of all state that Section 230 of the Code of Civil Procedure now in force is not applicable so as to bat execution, because, prior to the application now before us, no application for execution of this very old decree has been made and granted under that Code The question for our consideration is whether further execution is barred by Article 179 of Schedule II of the Limitation Act of 1877, and that depends upon whether we should hold that the application for sale of property under attachment should be regarded as an application merely in aid of an execution then proceeding.

3. We have not been shown that the attachment has been taken off this property, or that it is no longer in the hands of the Receiver, and therefore we must take it that there is before the Court an application for execution of this decree made before or during 1860 and therefore still in operation.

4. In our opinion the application contemplated by Article 179, Schedule II, and described as 'an application for the execution of a decree or order of any Civil Court, etc., etc.' is an application within the terms of. 235 of the Code of Civil Procedure, that is to say, an application setting the Court in motion to execute a decree in any manner set out in the last column of the form prescribed; but having so set the Court in motion, any forther application during the continuance of the same proceeding is an application to take some step in aid of execution within the terms of Clause 4 in the last column of Article 179, Schedule IT of the Limitation Act. This we may add seems to have been the view taken by the Full Bench in the case of Umbica Pershad Singh v. Surdhan Lull I.L.R. 10 Cal. 851. It is unnecessary to consider the ground upon which the lower Court has held that execution is not barred, because we arrived at the same conclusion by holding that, under the existing law of limitation, execution is not barred.

5. The appeal is therefore dismissed with costs.


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