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Hatimulla Vs. Sukhamoy Chaudhuri and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal304
AppellantHatimulla
RespondentSukhamoy Chaudhuri and ors.
Cases ReferredBrojendra Kishore v. Dil Makmud Sarkar
Excerpt:
- .....january 1925 was that the learned munsiff considered that the application for execution and the sale proclamation were not quite in form. the properties which were advertised for sale consisted of separate shares in separate revenue-paying estates. those were not described in separate lots and that is the defect which, the learned munsiff thought, prevented the sale from being held. the learned pleader for the decree-holder verbally prayed for amendment of the execution petition, but the learned munsiff refused the prayer and dismissed the execution case. in the present execution the learned munsiff held that the verbal prayer of the pleader for the decree-holder was a step-in-aid of execution and so did the learned district judge. an attempt was made by the judgment-debtor before the.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the judgment-debtor against the order of the learned District Judge affirming the decision of the Munsiff by which he held that the application for execution of a decree was not barred by limitation. The first application was made on 4th September 1924 and it was dismissed on 7th January 1925. The present application out of which this appeal has arisen was made on 30th November 1927. The question arises whether the last application has been made within three years of any steps taken in execution of the decree. What happened on 7th January 1925 was that the learned Munsiff considered that the application for execution and the sale proclamation were not quite in form. The properties which were advertised for sale consisted of separate shares in separate revenue-paying estates. Those were not described in separate lots and that is the defect which, the learned Munsiff thought, prevented the sale from being held. The learned pleader for the decree-holder verbally prayed for amendment of the execution petition, but the learned Munsiff refused the prayer and dismissed the execution case. In the present execution the learned Munsiff held that the verbal prayer of the pleader for the decree-holder was a step-in-aid of execution and so did the learned District Judge. An attempt was made by the judgment-debtor before the District Judge to establish the fact that the first execution of 4th September 1924 was not in accordance with law. That was negatived by the learned Judge and the finding of the District Judge has not been questioned before us. The objection that is taken on behalf of the judgment-debtor is that the learned District Judge has rightly found that the execution petition of 4th September 1924 was in accordance with law. That being so, the verbal prayer for amendment of the execution petition could not have been a step in aid of execution, because what was already correct could not be further corrected. Then logic of this argument, in my judgment, cannot be contested. But it is contended by the learned advocate for the respondent that the statement in the order that the execution petition was sought to be amended is wrong. The verbal prayer was to amend both the execution petition and the sale proclamation. The sale proclamation, it is urged, was not in proper form, because it ought to have given the value of the property separately and the revenue payable separately in each share. If we accept that view then the verbal prayer for amendment would be a step-n-aid of execution. But the learned advocate for the appellant points out that the District Judge on appeal while dealing with this question expressed his opinion that there was no particular reason why the Munsiff on the previous occasion should 'not have allowed the petition for execution to be amended on 7th January 1925, but the best course for the decree-holder to have adopted at that time was to have asked that the sale proclamation might be amended. So it is contended that the finding of the learned Judge was that the pleader for the decree-holder asked for amendment not of the sale proclamation but of the execution petition. Whatever that may be, it is not necessary to pronounce a definite opinion whether the application was for amendment of the execution petition only or of the execution petition as well as of the sale proclamation; because in my view, the application for execution made is within time. The judgment-debtor presented a petition on 10th December 1924, saying that there was an adjustment of the decree and presented an application under Order 21, Rule 2, Civil P.C. As the, learned Munsiff in the present case points out, the decree-holder contested that petition and attended the Court with witnesses and filed hajiras to dispute the judgment-debtor's allegation. This act on the part of the decree-holder should be taken to be an application to the Court to take a step-in-aid of execution. See the case of Brojendra Kishore v. Dil Makmud Sarkar (1918) 22 C.W.N. 1027. There is a further ground on which it must be held that the application is within time. In the judgment-debtor's petition of 10th December they acknowledged liability for a sum of Rs. 1,500 alleging that there has been a set off or payment of Rs. 500. This acknowledgment gives a fresh start under Section 19, Lim. Act. The Munsiff is not quite right in saying that the fresh start for saving limitation is conned to the sum of Rs. 1,500 admitted by the judgment-debtors. It gives a fresh start according to the provisions of the section to an application for execution of the entire decree. The appeal is, accordingly, dismissed with costs. Hearing fee, three gold mohurs.

Bose, J.

2. I agree.


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