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Kristo Churn Dass and ors. Vs. Radha Churn Kur - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal750
AppellantKristo Churn Dass and ors.
RespondentRadha Churn Kur
Cases ReferredWise v. Rajnarain Chuckerbutty
Excerpt:
limitation (act xv of 1877,) schedule ii, article 179, para 2 - execution of decree--appeal by plaintiff against part of decree making all defendants respondents--execution of part of decree not appealed against. - .....179 might be followed with less of possible inconvenience and complexity, even though in some cases execution against a defendant, the decree against whom was practically secure, might have been operative against him a little more than three years after it was so practically secure. but in the state of the authorities this doubt, if well founded, could only be given effect to by a full branch.7. the authorities just referred to decided after the full bench in wise v. rajnarain chuckerbutty 10 b.l.r. 258 do not, however, constrain us, in the present case, to hold execution to be barred. all the defendants were parties to the appeal; and the court is not, we think, bound, before allowing execution, to go into all the circumstances of that appeal, consider whether the decree against.....
Judgment:

Pigot and Macpherson, J.

1. The respondent obtained a decree against the appellants on March 23rd, 1886. On appeal the decree was modified: the claim for one-third share of the property claimed by the defendants 2 and 4 was dismissed, and the decree for the remaining two-thirds affirmed on the 13th July 1886. On appeal to the High Court the appeal was dismissed on June 16th, 1887.

2. In this appeal all the defendants were made respondents, and not merely those in respect of whose one-third claim the plaintiff's suit had been dismissed.

3. The plaintiff decree-holder now seeks for execution of the decree to the extent of a two-thirds share of the property and costs. Judgment-debtors Nos. 1 and 5 object that execution is barred because not applied for within three years from the date of the order of the Lower Appellate Court of the 13th July 1886. The Courts below have both rejected this objection and the defendants appeal.

4. They rely on the principle laid down in the case of Wise v. Rajnarain Chuckerbutty 10 B.L.R. 258 and on some of the cases decided since that Full Bench decision.

5. We quite agree with the opinion expressed on this subject by Tottenham and Gordon, JJ. in Nundun Lall v. Rai Joykishen I.L.R. 16 Cal. 598 (602) at page 602: 'In one of these cases, namely Gungamoyee Dassee v. Shib Sunkar Bhuttacharjee 3 C.L.R. 430 the Judges went entirely upon the words of the article, and it seems to us that, in a question of limitation, we ought to abide as strictly as possible by the terms of the law. We should not be disposed to import into the law any further restrictions as to the rights of parties to sue and to execute their decrees than the law itself expressly provides; but we are bound to recognise the fact that the law has been by interpretation, so to say, modified by decisions of this Court and the High Court of Allahabad. If, therefore, those cases were on all fours with the present one, we should feel bound to follow the decisions, unless we thought it right to refer the matter to a Full Bench. But we think that the present case does not come exactly under the rule laid down in those cases. In those cases in which execution was held to be barred as against parties who were not parties to the appeal, the decision rests expressly upon the ground that the appeal made by one did not and could not affect the decree as against others of the parties concerned in the case. In one case a former Chief Justice, Sir RICHARD COUCH in delivering judgment said that the decree being against various parties for various reliefs in reality amounted to several decrees, although embodied in one paper. The rule governing this decision appears to be shortly this, that unless the whole decree was imperilled by the particular appeal which was preferred, the decision in the appeal would not alter the period of limitation in respect of execution of the decree as between other parties to the suit.'

6. We would even go so far as to express a doubt whether the Legislature can have intended the Court executing a decree to go into questions so complicated as those which must sometimes arise in determining whether, in such a case as the present, the whole decree was, or might have been, or become, imperilled in the Court of Appeal, It does appear to us that the plain meaning of the words of Article 179 might be followed with less of possible inconvenience and complexity, even though in some cases execution against a defendant, the decree against whom was practically secure, might have been operative against him a little more than three years after it was so practically secure. But in the state of the authorities this doubt, if well founded, could only be given effect to by a Full Branch.

7. The authorities just referred to decided after the Full Bench in Wise v. Rajnarain Chuckerbutty 10 B.L.R. 258 do not, however, constrain us, in the present case, to hold execution to be barred. All the defendants were parties to the appeal; and the Court is not, we think, bound, before allowing execution, to go into all the circumstances of that appeal, consider whether the decree against the present appellants was most probably practically secure, and, on concluding that it was so, refuse execution. Here the High Court had all the parties before it, and had it been right to do so could have altered the decree against any of them.

8. We think we are at liberty to apply the terms of the article in the case in their plain meaning: and we agree with the Courts below and dismiss the appeal with costs.


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