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Sreenath Gooho and ors. Vs. Yusoof Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal556
AppellantSreenath Gooho and ors.
RespondentYusoof Khan
Excerpt:
execution - proceedings--limitation--civil procedure code (act x of 1877), sections 230, 235, 236, and 237. - .....exclude applications of this nature, and that it was intended that the decree-holder, seeking to execute a decree passed more than twelve years before, should have one opportunity to execute that decree, and that if he should fail to satisfy it on that application, any further application becomes barred. the order of the lower appellate court will, therefore, be confirmed, and such confirmation notified in the usual manner.field, j.2. i am of the same opinion. section 236 of the code enacts: 'whenever an application is made for the attachment of any moveable property belonging to the judgment-debtor, bat not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached.' section 237 provides, that 'whenever a application is made for the.....
Judgment:

Prinsep, J.

1. It is admitted that the decree under execution in this case was passed more than twelve years ago. On the 20th Septemher 1880, the decree-holders made an application under Section 235 of the Code of Civil Procedure of 1877 to execute the decree, and simultaneously, by a separate petition, they filed a schedule of the properties which they wished to proceed against, in order to realize the amount of their decree. On the 12th November 1880, they put in a fresh application, asking, as the District Judge says, 'not that certain errors in the last preceding application for execution be corrected, but that the whole of the properties attached conformably thereto be released, and certain other property specified in the form be attached in their stead,' If this application of the 12th November be regarded as a fresh application to execute, it is barred under Section 230 of the Code. If, however, the application of the 20th September be regarded as the application under which the decree-holders are now proceeding, they cannot enforce their decree as against this particular property. The appellants' pleader, however, contends that having, on the 20th September 1880, applied for execution of decree, they were at liberty to extend that application so as to include properties not mentioned in it, but any other property of the judgment-debtor which they should think fit to specify; in other words, the application having been made with a mind to proceed against certain properties, they should be at liberty to extend it for an unlimited period against other properties. It appears to us, that the object of Section 230 was to exclude applications of this nature, and that it was intended that the decree-holder, seeking to execute a decree passed more than twelve years before, should have one opportunity to execute that decree, and that if he should fail to satisfy it on that application, any further application becomes barred. The order of the lower Appellate Court will, therefore, be confirmed, and such confirmation notified in the usual manner.

Field, J.

2. I am of the same opinion. Section 236 of the Code enacts: 'Whenever an application is made for the attachment of any moveable property belonging to the judgment-debtor, bat not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached.' Section 237 provides, that 'whenever a application is made for the attachment of any immoveable property belonging to the judgment-debtor, it shall contain at the foot a description of the property sufficient to identify it, &c.;' Now, it is quite clear that the application for attachment spoken of in these two sections is the application mentioned in Section 235, and that the above provisions are to be read with Clause (i) of Section 235. From this it appears to have been the intention of the Legislature that an inventory, or sufficient description, of the property sought to be attached, whether moveable or immoveable, should be attached to the application for execution mentioned in Section 235. In the case before us, if the application of the 19th November 1880 be treated as a substantive application under Section 235, it is, in the first place, defective in form; and in the second place, it is barred by limitation, having been made after the twelve years mentioned in Section 230*. But then it is contended that this application may be accepted by way of an application amending and supplementary to the original application of the 20th September 1880. I think that, from what I have just said, it is clear that an inventory of the property, when moveable, must be delivered into Court along with the application for execution under Section 235; and if this supplementary list of property were allowed to be put in after the expiration of the twelve years, the essential portion of the law would be practically defeated.


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