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Kanak Prova Debi and ors. Vs. Dhirendra Nath Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal861,118Ind.Cas.337
AppellantKanak Prova Debi and ors.
RespondentDhirendra Nath Roy and ors.
Cases ReferredMungul Pershad Dichit v. Grija Kant Lahiri
Excerpt:
- .....by limitation.2. the only question in this case is whether an application made by one of two joint decree-holders for execution of the joint-decree with reference to his share of the interest awarded to him under the decree keeps alive the decree for subsequent execution. in this case the decree for costs was made by the trial court severally in favour of the respondents. the judgment-debtors who were the plaintiffs in that case appealed and on their appeal, the appellate court awarded costs to the respondents in this case jointly. in 1917 within three years of the date of the decree both the two sets of decree-holders separately applied for execution of the decree to the extent of what each considered to be his separate interest. it does not appear that any objection was takes on.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the judgment-debtors against the order of the District Judge affirming the decision of the Munsiff rejecting their application that the execution of the decree is barred by limitation.

2. The only question in this case is whether an application made by one of two joint decree-holders for execution of the joint-decree with reference to his share of the interest awarded to him under the decree keeps alive the decree for subsequent execution. In this case the decree for costs was made by the trial Court severally in favour of the respondents. The judgment-debtors who were the plaintiffs in that case appealed and on their appeal, the appellate Court awarded costs to the respondents in this case jointly. In 1917 within three years of the date of the decree both the two sets of decree-holders separately applied for execution of the decree to the extent of what each considered to be his separate interest. It does not appear that any objection was takes on behalf of the judgment-debtors, nor did the Court proceed under Order 21, Rule 17 or reject the application on the ground that such application was not maintainable. Within three years after that execution both sets of decree-holders again applied for execution of the decree severally. In 1923 only one set of decree-holders made an application for execution. In 1924 the same decree-holders presented a fresh application for execution of the decree apparently for their share or what they considered to be their share in the decree. The other decree-holder was subsequently allowed to be joined in the application and the application proceeded as if made by both sets of decree-holders.

3. The objection now is that under Order 21, Rule 15 any one or more of joint decree-holders are allowed to apply for execution of the whole decree for the benefit of them all; and it is contended that the Code does not provide for an application for execution by a joint decree-holder of a share of the decree. It is urged therefore that the applications made from 1917 downwards were not applications in accordance with law, and, therefore, the present application in 1924 for execution of the decree was barred by limitation. As the learned District Judge has observed the decisions of the several High Courts on that question are not uniform. The Allahabad Court has held that such an application is not in accordance with law, and, therefore, does not keep alive the decree : see Ram Autar v. Ajudhia Singh [1876] 1 All. 231 and Collector of Shahjanpur v. Raja Jagannath Singh [1881] 4 All. 72. On the other hand it was held by this Court in the case of Koylas Nath Ghose v. Nitya Shama Dassee 15 W.R. 449, that although the application for such execution is irregular and ineffectual for the purpose of execution, if made bona fide under a misapprehension of the law, it may be regarded as a proceeding which keeps the decree alive. Similarly it was held in the case of P.P. Kuthath Haji v. Bavotti Haji [1881] 3 Mad. 79, that although the Civil Procedure Code does not allow one of several decree-holders to apply for partial execution of a joint decree, yet an application by one of such decree-holders. for execution of the decree in respect of so much of the relief granted to all, as he considers appertains to him individually, may keep in force the decree as being an application according to law.

4. Under such circumstances I think we must follow the decision of this Court and hold that although the Civil Procedure Code does not permit an applications so made Being accepted by the Court and order made for execution after service of notice on the parties were effective in keeping alive the decree. Further in the present case the principle laid down in the case of Mungul Pershad Dichit v. Grija Kant Lahiri [1882] 8 Cal. 51 would apply. The view apparently taken by the Munsiff that the judgment-debtors not having raised an objection to the legality of the order made by the Court in the previous execution proceeding are not precluded from raising the question of limitation now does not appear to be supported by any reason or authority. The Case which the Munsiff purports to follow has been misread by him. The application of 1923 should be held to have kept alive the entire decree.

5. The appeal is therefore dismissed. There will be no order for costs in this appeal, under the circumstance.

Bose, J.

6. I agree.


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