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Chhotay Lal and anr. Vs. Puran Mull and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal39
AppellantChhotay Lal and anr.
RespondentPuran Mull and anr.
Cases ReferredRamu Rai v. Dayal Singh I.L.R.
Excerpt:
limitation - jurisdiction of the court to which a decree is sent for execution--code of civil procedure, 1882, sections 323, 328, 339. - .....held that he had no jurisdiction to consider the plea of limitation raised in the execution of a decree transferred to, him for execution by another court. mr. justice mitter expresses himself thus: 'under the full bench decision no doubt the court to which the decree is transferred for execution may entertain objections like the present, but it is not laid down in that full bench decision that the court cannot refer the objector to the court which passed the decree. under section 239 of the present code, the court to which a decree is transferred may refer the objector to the court which passed the decree.' and then the learned judge proceeds to point out that the question whether the objection of limitation should or should not be decided by the court to which a decree has been.....
Judgment:

Prinsep and Ghose, JJ.

1. This is an appeal relating to an application to execute a decree. The decree was passed on the 21st July 1886 by the Munsif of Patna on a compromise between the parties, and under its terms the sum of Rs. 70 was to be paid on the 14th August 1886 and the balance in sums of Rs. 10 monthly commencing from Bhadro 1943, and it was declared that in default to pay three instalments the whole decree was capable of being executed. It was found by the Munsif that no money was paid by the judgment-debtor, although the decree-holder alleged that certain payments had been made. He accordingly held that execution under the terms of the decree could have been taken out after the 11th November 1886, that being the last date on which the three instalments; became due. This judgment was delivered by the Munsif of Behar to whom the decree had been transferred for execution by the Munsif of Patna who passed the decree, on an application made to him on the 30th November 1889. It is unnecessary to refer to the various attempts made to execute the decree in the Court of the Munsif of Behar, because we consider that the view taken by the District Judge of Patna on appeal from his decision is incorrect in law, and that we must remand the case in order that he may apply the law correctly to such facts as may be found by him. The District Judge seems to have misunderstood the decree itself. There was no contract of compromise, but the decree was based on an agreement between the parties under which the defendant admitted the claim of the plaintiff, and both parties agreed that the payment should be made on certain terms and conditions. It was therefore for the Court of execution only to execute the decree in its terms. The point before the District Judge for determination was simply whether the decision of the Munsif of Behar was with jurisdiction, and, if with jurisdiction, whether he was right in declaring that execution was barred by limitation. The District Judge has held that the Munsif had no jurisdiction to consider whether the decree which was transferred to him for execution under Section 223 of the Civil Procedure Code was barred by limitation. He seems to have thought that that was a point which could only be determined by the Court which passed the decree. It has been held by this Court so long ago as 1868, in the case of Leake v. Daniel B.L.R. Sup. Vol. 970 : 10 W.R. F.B. 10, that when a decree has been transmitted by the Court which passed it to another Court for execution, the latter Court has jurisdiction to try whether or not execution of the decree is barred by the law of limitation. No doubt there have been subsequently some cases by Division Benches of this Court which have somewhat limited the operation of this judgment, but we do not find that in any of those cases any reference was made to this judgment, although in some of them Judges who were also members of the Full Bench were members of the Division Benches which delivered those judgments. We may refer to the cases of Soomut Dass v. Bhoobun Lall 21 W.R. 292 and Lootfoollah v. Keerut Chand 21 W.R. 330 : 13 B.L.R. Ap. 30. In the case of Nursing Doyal v. Hurryhur Saha I.L.R. 5 Cal. 897 the learned Judges pointed out that the case of Lootfoollah v. Keerut Chand was opposed to the judgment of the Full Bench in Leake v. Daniel B.L.R. Sup. Vol. 970 : 10 W.R. F.B. 10. We concur in this opinion. The Judges there held in accordance with the judgment of the Full Bench that the Court to which the decree had been (sic) for execution had jurisdiction to consider the objection raised whether execution was or was not barred by limitation. Section 239 enables a Court to which a decree has been sent for execution, on sufficient cause shown, to stay the execution of the decree for a reasonable time so as to enable the judgment-debtor to apply to the Court by which the decree was made for any order which might be necessary for the purposes of that execution. That section, however, does not deprive that Court from exercising the same powers in executing the decree as if it had been passed by itself as had been conferred by Section 228. We agree in the view of the law laid down by Mitter, and Maclean, JJ., in the case of Jassoda Kooer v. The Land Mortgage Bank I.L.R. 8 Cal. 916. The District Judge in that case held that he had no jurisdiction to consider the plea of limitation raised in the execution of a decree transferred to, him for execution by another Court. Mr. Justice Mitter expresses himself thus: 'Under the Full Bench decision no doubt the Court to which the decree is transferred for execution may entertain objections like the present, but it is not laid down in that Full Bench decision that the Court cannot refer the objector to the Court which passed the decree. Under Section 239 of the present Code, the Court to which a decree is transferred may refer the objector to the Court which passed the decree.' And then the learned Judge proceeds to point out that the question whether the objection of limitation should or should not be decided by the Court to which a decree has been transferred for execution must depend upon whether it could satisfactorily decide the matter upon the materials before it, or whether those materials would not be more readily available to the Court which passed the decree so as to require that the objection should be made before and decided by that Court. So again in the case of Srihary Mundul v. Murari Choiudhry I.L.R. 13 Cal. 257 the matter was considered. The point there was whether a decree having been transferred for execution to another Court, that Court should stay execution so as to leave the objection of limitation to be decided by the Court which passed the decree, and it was decided that either Court had jurisdiction to decide this matter. We, therefore, have no doubt on the decisions of this Court that the Munsif of Behar had jurisdiction to decide whether the execution of the decree which had been transferred to him by the Munsif of Patna was barred by limitation or not. We have been referred to the case of Ramu Rai v. Dayal Singh I.L.R. 16 All. 390 in which a contrary opinion is expressed. We, however, find ourselves unable to concur in the view expressed by the learned Judges in that case, which is moreover opposed to the judgments of this Court. This case, therefore, must be remanded to the District Judge in order that he may consider whether, on the facts of the case before him, the application is barred by limitation, and whether the judgment of the Munsif under appeal is correct in this respect. The costs will abide the result.


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