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Raghunundun Misser Vs. Kallydut Misser - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal690
AppellantRaghunundun Misser
RespondentKallydut Misser
Cases ReferredToree Mahomed v. Mahomed Mabood I.L.R.
Excerpt:
limitation act (xv of 1877), schedule ii, article 179 - application for leave to bid--step in aid of execution of a decree. - .....question has before been considered by other benches of this court. in the case cited to us, toree mahomed v. mahomed mabood i.l.r. 9 cal. 730, which has been acted upon by the lower court in this case, the learned judges, mr. justice macdonell and mr. justice tottenham, distinctly say at the top of page 732 that an application of this kind 'would not give a fresh starting point.' it is perfectly true that it may not have been necessary for them to have gone so far as to express an opinion upon that question in that particular case, still it was a question which seems to have been argued before them, and their decision on this point might well arise from the circumstances of the case. this decision has been cited with approval in another case, ananda mohan boy v. hara sundari i.l.r. 23.....
Judgment:

Trevelyan and Beverley, JJ.

1. The only question which arises in this case is whether an application for leave to bid is an application to the Court to take a step in aid of execution within the meaning of Article 179 of the Limitation Act. This question has before been considered by other Benches of this Court. In the case cited to us, Toree Mahomed v. Mahomed Mabood I.L.R. 9 Cal. 730, which has been acted upon by the lower Court in this case, the learned Judges, Mr. Justice MacDonell and Mr. Justice Tottenham, distinctly say at the top of page 732 that an application of this kind 'would not give a fresh starting point.' It is perfectly true that it may not have been necessary for them to have gone so far as to express an opinion upon that question in that particular case, still it was a question which seems to have been argued before them, and their decision on this point might well arise from the circumstances of the case. This decision has been cited with approval in another case, Ananda Mohan Boy v. Hara Sundari I.L.R. 23 Cal. 196. With reference to the other cases we find no expression of disapproval of this decision. As against it, there is a decision of Mr. Justice YOUNG, sitting alone in a case Bansi v. Sikree Mal I.L.R. 13 All. 211 reported in the Allahabad High Court Reports. The learned Judge has not given his reasons why he differs from the view taken by the Calcutta High Court, but merely says that he takes a different view. As matters stand, the decisions of this Court, so far as we can see, are uniform. We are not prepared to say in any way that, if the matter came to us afresh, we should arrive at a conclusion different from that expressed by the learned Judges, who decided the case of Toree Mahomed v. Mahomed Mabood I.L.R. 9 Cal. 730. We do not think an application of this kind is an application seeking the action of the Court in execution of a decree. It may be in one sense a step in aid of execution of the decree, but it is not a step by the Court. Before a judgment-creditor can get any benefit, he must show that he asks the Court to take some step in aid of execution. A step taken by the judgment-creditor himself is not, as is pointed out in one of the cases to which we have referred, sufficient.

2. An application for leave to bid is not, as far as we can see, in any way a step in aid of execution, It is merely an order made to remove the restriction which the Code of Civil Procedure has placed upon the action of the judgment-creditor. The sole object of it is to remove that restriction and not to enforce the decree. For these reasons we dismiss the appeal with costs.


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