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Dwarika Nath Paul and anr. Vs. BipIn Rishi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal200,64Ind.Cas.32
AppellantDwarika Nath Paul and anr.
RespondentBipIn Rishi and ors.
Cases ReferredBahuballav Roy v. Jogesh Chandra Banerjee
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 2 - execution of decree--payment out of court--certification. - walmsley, j.1. this rule was issued at the instance of the decree holder. he obtained a decree for rs. 419 odd. the last application was disposed of on the 7th marsh 1917 and the application from which this rule arises was presented on the 23rd april 1920, that is, more than 3 years later. the decree-holder seeks to get over the matter of limitation by saying that payments were made out of court in february 1918 and may 1919.2. it is argued on his behalf that on the principle of the decision in the case of tukaram v. babaji 21 b. 122 : 11 ind. dec. (n.s.) 84, the statement that these payments were made out of court should be treated as an application for certification and the lower court should be directed to give the judgment-debtors an opportunity of stating whether such payments had in.....
Judgment:

Walmsley, J.

1. This Rule was issued at the instance of the decree holder. He obtained a decree for Rs. 419 odd. The last application was disposed of on the 7th Marsh 1917 and the application from which this Rule arises was presented on the 23rd April 1920, that is, more than 3 years later. The decree-holder seeks to get over the matter of limitation by saying that payments were made out of Court in February 1918 and May 1919.

2. It is argued on his behalf that on the principle of the decision in the case of Tukaram v. Babaji 21 B. 122 : 11 Ind. Dec. (N.S.) 84, the statement that these payments were made out of Court should be treated as an application for certification and the lower Court should be directed to give the judgment-debtors an opportunity of stating whether such payments had in fact been made or not. So far as this Court is concerned, it appears to me that the matter is concluded by the decision in the case of Bireswar Mookerjee v. Ambika Charan Battacharjee 42 Ind. Cas. 472 : 45 C. 630 and also the case of Bahuballav Roy v. Jogesh Chandra Banerjee 50 Ind. Cas. 242 : 23 C.W.N. 320.

3. In my opinion this Rule must be discharged with costs. The hearing fee is fixed at one gold mohur.


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