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Ananda Mohan Roy Vs. Hara Sundari - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal196
AppellantAnanda Mohan Roy
RespondentHara Sundari
Cases ReferredParan Singh v. Jawahir Singh I.L.R.
Excerpt:
limitation act (xv of 1877), schedule ii, article 179, clause 4 - application to receive poundage fee--application to set off the purchase money against the decree, instead of paying it into court--step in aid of execution of a decree. - .....execute that decree, and certain property was attached and advertised for sale. on 3rd august the decree-holder applied for permission to bid at the sale, which was granted, and on the 5th the property was sold and purchased by the decree-holder. on the same day he put in an application depositing the poundage fee, and praying that the purchase-money, instead of being paid into court in cash, might be set off against the decree, and an order was made to that effect.2. on the 6th august 1894 (the 5th august being a sunday) another application was made to execute the decree, and the question before us is whether this application is barred by limitation under article 179.3. the learned district judge has held that the application of august 3rd, 1891, for leave to bid does not affect the.....
Judgment:

W. Comer Petheram, C.J. and Beverley, J.

1. The decree, in execution of which these proceedings have arisen, was made on 13th June 1890. On 8th June 1891 an application was made to execute that decree, and certain property was attached and advertised for sale. On 3rd August the decree-holder applied for permission to bid at the sale, which was granted, and on the 5th the property was sold and purchased by the decree-holder. On the same day he put in an application depositing the poundage fee, and praying that the purchase-money, instead of being paid into Court in cash, might be set off against the decree, and an order was made to that effect.

2. On the 6th August 1894 (the 5th August being a Sunday) another application was made to execute the decree, and the question before us is whether this application is barred by limitation under Article 179.

3. The learned District Judge has held that the application of August 3rd, 1891, for leave to bid does not affect the question, it not having been made within three years prior to 6th August 1894. It was also held in the case of Toree Mahomed v. Mahomed Mabood Bux I.L.R. 9 Cal. 730 that such an application was not an application to take some step in aid of execution. As regards the application of August 5th, 1891, so far as it was an application to be allowed to set off sale proceeds against the decree, the District Judge is also of opinion that it was not an application to take some step in aid of execution, but he has held on the authority of Radha Prosad Singh v. Sunder Lall I.L.R. 9 Cal. 644 that the payment into Court of the poundage fee on that date was an application sufficient to save limitation under Article 179 of the Act.

4. Against this order the judgment-debtor appeals.

5. The facts of the reported case to which the Judge has referred do not appear either from the report or from the paper book of the case which we have consulted. In his judgment Mitter, J., when using the expression 'nelami fee,' describes it as the 'costs of bringing certain property to sale in execution of the decree,' and judging from the amount of the fee mentioned (Rs. 2), we think it seems pretty clear that it was the fee prescribed by the rules then in force in respect of an order for the sale of attached property. This fee has since been reduced to Re. 1. But even as regards that fee it was explained in a later case in the same volume of the Reports-Toree Mahomed v. Mahomed Mabood Bux I.L.R. 9 Cal. 730 that the mere payment of the fee into Court without any application asking the Court to take some step in aid of execution is not sufficient to save limitation. In other words, an application to the Court to sell attached property is an application to the Court to take a step in aid of execution, but the mere payment of the fee prescribed therefor is not such an application. The case now before us, however, relates to a different fee altogether, namely, to the poundage fee, which is a percentage calculated upon the price for which the property sells and is payable by the decree-holder after the sale. It may be convenient to reproduce in this place the rule prescribed by this Court in accordance with Section 20 of the Court Fees Act of 1870 in respect of this fee.

Where an order for the sale of property other than an order for the sale of distrained property under Act VIII of 1885 is issued-

(a) For proclaiming the order of sale under Section 287 of the Civil Procedure Code a foe of Re. 1.

(b) For selling the property a percentage or poundage on the gross amount realised by the sale up to Rs. 1,000, at the rate of 2 per cent, together with a further fee on all excess of gross proceeds beyond Rs. 1,000 at the rate of 1 per cent. Note-The fee under Clause (a) must be paid when the process is obtained. The percentage or poundage under Clause (b) must be paid -(1) in a case where the purchaser is a person other than the decree-holder, at the time of making the application for payment of the proceeds of sale out of Court as provided in Rule IV, and (2) in a case where the decree-holder has been permitted to purchase, at the time of the presentation of his application for permission to set off the purchase-money against the amount of his decree as provided in Rule V. The percentage leviable under this Article shall be calculated on multiples of Rs. 25.

6. In the recent case of Aghore Kali v. Prosunno Coomar Banerjee I.L.R. 22 Cal. 827 we expressed the opinion that an application to receive the poundage fee by a decree-holder who has himself purchased the property, and to set off the purchase-money against the decree, is not an application to take any step in aid of the execution. Such an application, as it seems to us, is precisely similar to an application for payment of the sale proceeds out of Court, and it has been held by this Court in the cases of Hem Chunder Chowdhry v. Brojo Soondury Dabee I.L.R. 8 Cal. 89, Fazal Imam v. Metta Singh I.L.R. 10 Cal. 549, and Gunga Pershad Bhoomick v. Debi Sundari Dabea I.L.R. 11 Cal. 227 that an application of that sort is not an application to take some step in aid of execution, although no doubt a different view has been taken by the High Courts at Madras and Allahabad in the cases of Venkatarayalu v. Nara Sinha I.L.R. 2 Mad. 174, Kerala Varma Valiya Rajah v. Shangaram I.L.R. 16 Mad. 452, Koormayya v. Krishnamma Naidu I.L.R. 17 Mad. 165, Paran Singh v. Jawahir Singh I.L.R. 6 All. 366. It seems to us that when the sale of the property attached in execution has been completed and the purchase-money has been paid into Court, nothing more remains to be done in respect of the execution of the decree as against that property, and no application as regards the purchase-money, either to draw it out of Court or to set it off against the decree when the decree-holder is himself the purchaser, can be properly said to be an application to the Court to take some step in aid of the execution of the decree. We accordingly hold that the application of 6th August 1894 was barred by limitation, and we reverse the orders of the lower Courts and reject the application with costs in all Courts.


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