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Corporation of Calcutta Vs. Monjoor Ahmed - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1939Cal488
AppellantCorporation of Calcutta
RespondentMonjoor Ahmed
Excerpt:
- .....preliminary decree in respect of the charge they had on a certain property of the respondent. the final decree in that matter was passed on 3rd march 1934. thereafter there were certain petitions for adjournment in the proceedings for rehearing under order 9, rule 13, civil p.c. those prayers were granted from time to time and, eventually, there was an application by the plaintiffs for the passing of a final decree under order 34, rules 4 and 5, on 10th september 1936. that application was rejected on 10th october 1936. the application for execution was filed on 4th september 1937. both the courts below have held that it was time-barred, being made three years after the date of the final decree. it transpires' that the property in respect of which the-charge for rates was given is wakf.....
Judgment:

Derbyshire, C.J.

1. The Calcutta Corporation on 1st February 1934 got a preliminary decree in respect of the charge they had on a certain property of the respondent. The final decree in that matter was passed on 3rd March 1934. Thereafter there were certain petitions for adjournment in the proceedings for rehearing under Order 9, Rule 13, Civil P.C. Those prayers were granted from time to time and, eventually, there was an application by the plaintiffs for the passing of a final decree under Order 34, Rules 4 and 5, on 10th September 1936. That application was rejected on 10th October 1936. The application for execution was filed on 4th September 1937. Both the Courts below have held that it was time-barred, being made three years after the date of the final decree. It transpires' that the property in respect of which the-charge for rates was given is wakf property and that from time to time, after the finals decree had been passed on 3rd March 1934 there were attempts to get the matter adjusted. Those attempts came to nothing.

2. In my view the learned Judge has come to a correct conclusion in dismissing the application for execution. The final decree was passed on 3rd March 1934. Through some blunder in the office of the Corporation another application for a final decree was made on 10th September 1936 and an order was made on it. It is said that that was a step-in-aid of execution. In my view it was not. A step-in-aid of execution means' an aid in execution of the decree. What the appellants did here was to forget the decree completely and asked for another decree to be made. They never thought about the decree when they took those proceedings of 10th September 1936. Whatever step they took was not in aid of that decree it was, something else quite independent of it. As regards the various applications for adjournment which were said to be acknowledgments of the debt, one has to remember in the first instance that this debt, although a decree had been passed for it, was being disputed by the respondent as not being payable at all. The prayer for adjournment to compromise it by no means admits the debt itself when proceedings to set it aside had been taken. It seems to me that; to bring a case within Section 19, Limitation Act, there must be a clear acknowledgment of liability. Adjournments are often obtained for the purpose of delay and often for the purpose of convenience. I am unable; to see that the requests by the defendant j here for adjournment on various dates constitute any acknowledgment of liability within Section 19, Limitation Act. The truth of the matter is that the plaintiffs have slept on their rights and the statute of limitation has deprived them of those rights. For these reasons I am of the opinion that this appeal must be dismissed. No order is made as to costs.

Nasim All, J.M

3. I agree with my lord, the Chief Justice, that this appeal should? be dismissed. In the present application for execution the appellants stated that the period of limitation under Article 182, Limitation Act, is to run from 1st December 1934, when the application for setting aside the ex parte decree under Order 9, Rule 13 of the Code was dismissed. In order to save the present execution from the bar of limitation the appellants relied on Article 182(3), Limitation Act, before the trial Judge. The trial Judge held that the dismissal of an application for rehearing under Order 9, Rule 13 does not come under Article 182 (3), Limitation Act.

4. When the matter was taken by the appellants before the learned District Judge the appellants put forward another additional ground for exemption from the bar of limitation. It was argued before the learned Judge that there had been an acknowledgment by the judgment-debtor of the liability under the decree. In order to substantiate this contention copies of certain orders made apparently in the rehearing case, which were not put into evidence before the trial Judge, were produced before the learned Judge. On an interpretation of those orders the learned Judge held that there had been no clear and unequivocal admission by the judgment-debtor of the liability under the decree. The learned District Judge also agreed with the trial Judge that the period of limitation did not run from the date when the application for rehearing was rejected, inasmuch as such an order does not come under Article 182(3), Limitation Act. He accordingly dismissed the appeal.

5. In this second appeal before us the learned advocate appearing on behalf of the appellants attempted to bring the case under Article 182(5), Limitation Act. It was contended by him that there was an application by the decree-holder in accordance with law to take some step-in, aid of execution of the decree. This is however an entirely new point. It was not taken in any of the Courts below. The learned advocate in support of this contention relied upon an application which is alleged to have been filed by the decree-holder on 10th September 1936, under Order 34, Rules 4 and 5, Civil P.C. for making the decree final though the decree had been made final long ago, viz. on 3rd March 1934. Though the decree-holder did not claim any exemption under Clause (5), Article 182, Limitation Act, and the petition on which he relied was not formally put in evidence it is clear that such an application can never be treated as an application in accordance with law to take some step-in-aid of execution.

6. The learned advocate for the appellants also relied upon an alleged acknowledgment by the judgment-debtor in support of his contention that a fresh period of limitation started when the acknowledgment was made under Section 19, Limitation Act. The learned advocate conceded that on the orders on which the appellants relied before the learned District Judge in support of this contention it was impossible to contend that the learned Judge was wrong in holding that there had been no clear and unambiguous acknowledgment. He however asked us to consider those orders along, with the applications on which those orders were made. These applications were not relied upon in any of the Courts below. The case that there had been an acknowledgment of the liability under the decree of the judgment-debtor was not made before the trial Judge. It was sought to be made for the first time before the lower Appellate Court on some new materials. In this Court again this plea was sought to be supported by further materials. The learned advocate asked us to take additional evidence or to remit the case to the lower Appellate Court for taking further evidence. No explanation however was given as to why this plea was not raised in the Court of first instance or why no evidence was adduced on this point either before the trial Court or before the lower Appellate Court. There are therefore no materials on the record of the present case to show that there had been a clear and unequivocal acknowledgment by the judgment-debtor of the liability under the decree. Under these circumstances I am of opinion that the decision of the Courts below is right.


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