Skip to content


Mohan Lal Golchha and ors. Vs. KasimuddIn Shaikh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1928Cal302
AppellantMohan Lal Golchha and ors.
RespondentKasimuddIn Shaikh and ors.
Cases ReferredPran Krishna Das v. Patap Chandra Daloi
Excerpt:
- .....puja holidays of that year did not terminate till that date and, therefore, if it be held that the decree-holders were within time, that is to say, that the application was filed within a period of three years from 28th september 1921, the date when the decree-holders filed process fee in the previous execution case, then it must follow as a necessary corollary that their present application for execution was within time. the dispute between the parties is with reference to what has happened on 28th september 1921. the appellants contend that what happened on 28th september should be regarded by the court as a step-in-aid of execution within the meaning of article 182, clause (5), schedule 1, lim. act. whereas the respondents contend that the decree-holders did not take any step.....
Judgment:

C.C. Ghose, J.

1. In this case, the only question involved is a question of limitation. The appellants are the decree-holders and they applied for execution of the decree which they had obtained, the application for execution being filed on 31st October 1924. It appears that the Durga Puja holidays of that year did not terminate till that date and, therefore, if it be held that the decree-holders were within time, that is to say, that the application was filed within a period of three years from 28th September 1921, the date when the decree-holders filed process fee in the previous execution case, then it must follow as a necessary corollary that their present application for execution was within time. The dispute between the parties is with reference to what has happened on 28th September 1921. The appellants contend that what happened on 28th September should be regarded by the Court as a step-in-aid of execution within the meaning of Article 182, Clause (5), Schedule 1, Lim. Act. Whereas the respondents contend that the decree-holders did not take any step whatsoever in aid of execution within a period of three years from the date when they last made their application for execution and that, therefore, the lower appellate Court, was right in holding that the application was barred by limitation. Now, the order-sheet shows what happened on 28th September 1921. The order runs as follows:

Service of notice proved. Decree-holders to file the remaining process-fees within a short time. Issue warrant of arrest returnable by 30thNovember 1921.

2. As far as one can make out from the order-sheet and from the order under date 28th September 1921 two things happened on that date. First, the decree-holders proved that service of notice upon the judgment-debtors had been effected and, in the second place, it is reasonably clear that the decree-holders must have made an application orally to the Court for an order for warrant of arrest of the judgment-debtors. It has been held in the case of Pran Krishna Das v. Pratap Chandra Daloi [1917] 21 C.W.N. 423, that the filing of an affidavit of service which is the same thing as proving service of notice on the judgment-debtors is a step-in-aid of execution. Speaking for myself, I see no reason to take a view different to that taken by Woodroffe and Walmsley, JJ., in the case referred to above. In the present case, the decree-holders, in my opinion, are on stronger ground when they point to the order-sheet and ask us to infer that they must have made an oral application to the Court for issue of warrant of arrest and that their application was granted. The fact that an order for issue of warrant was made shows conclusively that the Court must have acted on some application or other of the decree-holders. If the decree-holders had made an application which resulted in the order for issue of warrant of arrest of the judgment-debtors, it must be held that the decree-holders did take on that date a step-in-aid of execution within the meaning of Article 182, Clause (5), Schedule 1, Lim. Act. That being so, no question of limitation can possibly arise in this case and it must be held, in my opinion, that the decree-holders' application was within time. In my judgment, the appeal should be allowed and the judgment-debtors' objection to execution must be dismissed with costs. The hearing-fee in this Court is assessed at two gold mohurs.

Buckland, J.

3. I see no possible ground upon which this case can be distinguished from the case of Pran Krishna Das v. Patap Chandra Daloi [1917] 21 C.W.N. 423. I, therefore, agree that the appeal should be allowed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //