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RabiuddIn Vs. Ram Kanai Sen - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.186
AppellantRabiuddin
RespondentRam Kanai Sen
Cases ReferredMahamaya Prasad Singh v. Abdul Hamid
Excerpt:
execution of decree - decree capable of execution but not executed within three years, effect of--amendment of decree, whether revives decree. - .....the decree was barred by limitation.2. the preliminary decree was dated the 23th june 1912 and the final decree was dated the 6th february 1915. the application for execution was made on the 25th march 1918, that is more than three years after the date of the final decree.3. it appears that subsequent to the 25th march 1918 an application for amendment of the decree was made on behalf of the decree-holder. that application was allowed without any notice to the judgment-debtors. after the amendment was made the judgment-debtors were served with notice and then they appeared and raised objection to the execution on the ground that it was barred by limitation. the courts below have overruled this plea and the judgment-debtor-defendant no. 3, has appealed to this court.4. as stated above,.....
Judgment:

1. The question involved in this appeal is, whether the application for execution of the decree was barred by limitation.

2. The preliminary decree was dated the 23th June 1912 and the final decree was dated the 6th February 1915. The application for execution was made on the 25th March 1918, that is more than three years after the date of the final decree.

3. It appears that subsequent to the 25th March 1918 an application for amendment of the decree was made on behalf of the decree-holder. That application was allowed without any notice to the judgment-debtors. After the amendment was made the judgment-debtors were served with notice and then they appeared and raised objection to the execution on the ground that it was barred by limitation. The Courts below have overruled this plea and the judgment-debtor-defendant No. 3, has appealed to this Court.

4. As stated above, the decree was barred on the day the application for execution was made which was more than three years after the date of the final decree, and the mere fact that an application for amendment was made or that the decree had been amended would not have the effect of reviving a dead decree or giving a fresh start to the decree-holder unless the decree was incapable of execution before the amendment. See the case of Anandram v. Nityananda Barham 32 Ind. Cas. 744 (Miscellaneous Appeal No. 291 of 1915 decided by Sharfuddin and Teunon, JJ., on 31st January 1916).

5. The lower Court has relied upon the case of Mahamaya Prasad Singh v. Abdul Hamid 21 Ind. Cas. 615 : 18 C.W.N. 266 at p. 268. But in that case the decree did sot specify the reliefs granted and was incapable of execution unless it was amended; and it was, therefore, held that the application for execution of the decree after the amendment was not barred by limitation. In the present case the decree was capable of execution.

6. It is contended that in the preliminary decree it was stated that the order in which the properties would be sold, would be determined hereafter. That appears to be the direction in the judgment and there is no discrepancy between the judgment and the decree. The application for amendment merely stated that the preliminary decree and the final decree had been erroneously drawn, that the preliminary decree was not in accordance with the judgment nor was the final decree in accordance with the preliminary decree. The Court by its order of amendment stated that the order in which the properties would be sold, would be determined in the execution proceedings. We do not see how, if the decree was incapable of execution before the amendment, it became capable of execution by the order of amendment when it was made.

7. There was also some variation of a few rupees with regard to the amount of costs. That did not render the decree incapable of execution before amendment.

8. We was accordingly of opinion that the decree as it stood, was capable of execution and not having been executed within three years from the date of the final decree, was dead, and could not be revived by a subsequent application for amendment.

9. The appeal must accordingly be allowed and the application dismissed with costs in all Courts. We assess the hearing fee in this Court at one gold mohur.


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