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Kedar Nath Dey Roy Vs. Lakhi Kanta Dey - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.1005
AppellantKedar Nath Dey Roy
RespondentLakhi Kanta Dey
Cases ReferredIn Shib Lal v. Radha Kishen
Excerpt:
limitation act (ix of 1908), schedule i, article 182, clause (5) - step-in-aid of execution--application for summoning witnesses as to standard of measurement. - .....determine the standard of measurement and, for that purpose, to take evidence in the matter. the decree-holder applied for summons upon his witnesses who were examined. the court, after taking evidence on both sides, directed fresh delivery of possession by another commissioner and ordered the decree-holder to deposit costs, which not having been paid, the execution case was dismissed on the 30th january 1914 for default.3. the question is whether the application made by the decree-holder on the 11th february 1911 for summoning witnesses was a step-in-aid of execution under article 182, clause 5, of the limitation act.4. it is true, as contended by the appellant that a step-in-aid of execution must be a positive step taken by the decree-holder on his own account in furtherance of his.....
Judgment:

1. The question involved in this appeal is whether the application for execution of the decree, out of which this appeal arises, is barred by limitation.

2. It appears that the appellant obtained a decree for possession of certain property and possession was delivered to him on the 28th January 1911. The judgment-debtor raised objections to the delivery of possession by the Commissioner, and the Court found it necessary to determine the standard of measurement and, for that purpose, to take evidence in the matter. The decree-holder applied for summons upon his witnesses who were examined. The Court, after taking evidence on both sides, directed fresh delivery of possession by another Commissioner and ordered the decree-holder to deposit costs, which not having been paid, the execution case was dismissed on the 30th January 1914 for default.

3. The question is whether the application made by the decree-holder on the 11th February 1911 for summoning witnesses was a step-in-aid of execution under Article 182, Clause 5, of the Limitation Act.

4. It is true, as contended by the appellant that a step-in-aid of execution must be a positive step taken by the decree-holder on his own account in furtherance of his own application, and not merely in opposition to any objection taken by the judgment-debtor. But, in the present case, although possession had been delivered to the decree-holder, the judgment-debtor filed a petition of objection to the delivery of possession; and the application for execution, was pending and had not been disposed of.

5. Upon the objection of the judgment-debtor, the Court found it necessary to ascertain the standard of measurement, without the determination of which possession could not be delivered. Under these circumstances, it became necessary to adduce evidence on the point.

6. The application to the Court for summoning witnesses, therefore, was an act in furtherance of the application for execution which was still pending and was, therefore, a step-in-aid of execution.

7. The cases relied upon on behalf of the respondent were of a different nature. In the case of Trolokya Nath Bose v. Jyoti Prokash Nandi 30 C. 761 : 8 C.W.N. 251 it was held that the decree-holders' opposition to an application of the judgment-debtor to sell his properties in an order different from that in which they had already been directed to be sold, was not an application to take some step-in-aid of execution. It was only asking the Court to refrain from taking the course which had already been taken and not asking the Court to take some positive step. In Umesh Chunder Dutta v. Soonder Narain Deo 16 C. 747 : 8 Ind. Dec. (N.S.) 495 the appearance of the decree-holder by his Pleader to oppose an application made by the judgment-debtor to set aside a sale in execution of a decree was held not to be an application to take a step-in-aid of execution. In Shib Lal v. Radha Kishen 7 A. 898 : A.W.N. (1885) 287 : 4 Ind. Dec. (N.S.) 989 the Court held that resisting or offering objections to an attempt on the part of the judgment-debtor to set off the amount of the decree against the amount due to himself is not taking some step-in-aid of execution. On the other hand, in the unreported case (Miscellaneous Appeal No. 373 of 1894, decided on the 7th August 1895) it was held that where a decree-holder opposing an application to set aside a sale held at his instance puts in a list of witnesses and asks the Court to summon and examine the witnesses, he takes a step-in-aid of execution and is entitled to have a fresh period of three years for another application for the execution of his decree.

8. In the present case, as already stated, there was a substantive application by the decree-holder which was pending and his application for summoning witnesses was in furtherance of the execution of the decree, namely, for determining the standard of measurement without which he could not, in the opinion of the Court, obtain execution of the decree by delivery of possession.

9. We think, therefore, that the application was a step-in-aid of execution and the present application for execution, having been made within three years of the date on which such a step was taken, is not barred.

10. The appeal fails and is dismissed with costs, one gold mohur.


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