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Abdul Sattar Choudhury and ors. Vs. Abdul Rusan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Reported inAIR1936Cal400,165Ind.Cas.756
AppellantAbdul Sattar Choudhury and ors.
RespondentAbdul Rusan and ors.
Excerpt:
- .....which there was objection preferred by the judgment-debtor under section 47, civil p. c., and the execution proceedings started by the plaintiffs was held to be not maintainable, in view of the order passed by the court on 27th august 1925, recording full satisfaction. the order passed by the court of execution on 8th january 1927, against the plaintiff, was appealed against; and there was a further appeal by the plaintiffs against the decision of the appellate court to this court. the order in the execution proceedings holding against the plaintiffs that they were not maintainable was affirmed by this court on 18th march 1929. the suit giving rise to this appeal was instituted by the plaintiffs on 26th march 1931, and the bar of limitation was sought to be avoided by asserting that the.....
Judgment:

1. This is an appeal under Section 15 of the Letters Patent from a decision of our learned brother R.C. Mitter, J., dismissing an appeal to this Court preferred by the plaintiffs in a suit in which the main relief claimed was for rectification of a petition of adjustment of a decree filed in Court on 22nd August 1925 in a proceeding in execution. The Court of first instance, as also the Court of appeal below, on the evidence in the case, came to the finding, in favour of the plaintiffs, that a mistake had crept into the petition of adjustment. The learned Judge in this Court in second appeal held that the suit was maintainable, overruling the decision of the Court of appeal below, which held otherwise. There can be no question that the decision of Mitter, J., holding that the plaintiffs' suit was maintainable, and that Section 47, Civil P. C., was no bar to the same, is unassailable, as the question of rectification of the petition of adjustment could not be decided by the successor-in-office of the Judge before whom it was filed, under Section 47, Civil P. C., in view of the order passed by the Judge recording satisfaction.

2. The substantial question for consideration in the appeal before us, is whether the learned Judge, Mitter, J., is right in his decision that the plaintiffs' suit was barred by limitation. The suit to which the provisions contained in Article 96, Schedule 1, Lira. Act, was applicable, was filed out of time, and was prima facie barred by limitation, unless Section 14, Lim. Act, could be invoked in aid of the plaintiffs. The plaintiffs, it would appear, were the parties who had applied for execution of their decree on 21st August 1926, upon which there was objection preferred by the judgment-debtor under Section 47, Civil P. C., and the execution proceedings started by the plaintiffs was held to be not maintainable, in view of the order passed by the Court on 27th August 1925, recording full satisfaction. The order passed by the Court of execution on 8th January 1927, against the plaintiff, was appealed against; and there was a further appeal by the plaintiffs against the decision of the appellate Court to this Court. The order in the execution proceedings holding against the plaintiffs that they were not maintainable was affirmed by this Court on 18th March 1929. The suit giving rise to this appeal was instituted by the plaintiffs on 26th March 1931, and the bar of limitation was sought to be avoided by asserting that the plaintiffs were prosecuting some other proceedings as contemplated by Section 14, Lim. Act.

3. In our judgment the application for execution made by the plaintiffs on 21st August 1926, giving rise to Title Execution Case No. 331 of 1926, must be taken to be a proceeding which the plaintiffs had been prosecuting till 18th March 1929, and it would be going against the scope and operation of Section 14, Lim. Act, if it were held that it was the judgment-debtor's objection that was the proceeding before the Court of execution, and not the proceeding in execution started by the plaintiffs to which objection was raised by the judgment-debtors. The proceeding before the Court of execution was the one started on the application of the plaintiffs as decree-holders, to which objection was raised by the judgment-debtors under Section 47, Civil P. C.; the order on that proceeding was against the plaintiffs' objection raised by the judgment-debtors having been allowed to prevail. The proceeding was carried on in Courts of appeal; and the ultimate order passed in the proceeding in execution, started at the instance of the plaintiff, was against the plaintiffs. In the above view of the case before us, we have no hesitation in holding that the plaintiffs were entitled to invoke the aid of the provisions contained in Section 14, Lim. Act, for saving the bar of limitation. It may be mentioned that we are unable to hold, as it appears to have been held by Mitter, J., in the case before us, that the fact that there was an objection under Section 47, Civil P. C., by judgment-debtors, operated as a complete bar to the plaintiff's invoking the aid of Section 14, Lim. Act.

4. It was the application for execution made by the plaintiffs which gave rise to the objection by the judgment-debtors, who were parties resisting the decree-holder's application to execute their decree; and it appears to us to be unreasonable, and not at all in consonance with justice, to place the plaintiffs seeking to execute their decree in the position of defendants or opposite parties resisting the objection raised to execution in contradistinction with plaintiffs and applicants as mentioned in Section 14, Lim. Act, and thus denying them the benefit of the operation of the law, so far as exclusion of time during which another proceeding was being prosecuted by them with due diligence. The plaintiff's suit was maintainable; it was not barred by limitation; and on the finding arrived at by the Court of appeal below, that a mistake had crept into the petition of adjustment filed in the Court of execution on 22nd August 1925, the plaintiffs in the suit, the appellants before us, were entitled to the relief claimed by them so far as the rectification of the petition filed on 22nd August 1925 was concerned. The decree passed in favour of the plaintiffs by the Court of first instance, so far as the claim for rectification as mentioned above, is restored.

5. The plaintiffs' claim for declaration of their title and for possession, as made in the suit in which the appeal has arisen, is dismissed on the findings arrived at by the Court of appeal below. In the result the appeal is allowed in the manner mentioned above, the decree of the trial Court being restored in part. The plaintiffs-appellants are entitled to get their costs in the litigation throughout from the defendants-respondents.


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