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Nalini Kanta Roy Vs. Kamaraddi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal239
AppellantNalini Kanta Roy
RespondentKamaraddi and ors.
Excerpt:
- .....took certified copy of that portion of the summons book which contains the formal decree and was therefore led to believe that the suit was decreed on 16th february 1929. his application for execution was filed on 15th february 1932, and was therefore within time if the decree was passed on 16th february 1929, but out of time from the date of actual decision 11th february 1929. it is true that the court has no power to extend the time of limitation. but in the circumstances of the case in the interest of justice, i think, the decree ought to be regarded as having been passed on 16th february 1929 on the principle 'actus curiae neminem gravabit' which has been followed in a number of cases of this nature, one of which is referred to by the learned advocate for the petitioner, civil.....
Judgment:

Jack, J.

1. This Rule No. 424 has been issued upon the opposite party to show cause why an order dismissing an application for execution as barred by limitation should not be set aside on the ground that the petitioner having been misled by mistake of the Court the application for execution is not barred by limitation.

2. It appears that a decree was by mistake dated 16th February 1929, whereas the date of the decision was actually 11th February 1929. The decree-holder took certified copy of that portion of the summons book which contains the formal decree and was therefore led to believe that the suit was decreed on 16th February 1929. His application for execution was filed on 15th February 1932, and was therefore within time if the decree was passed on 16th February 1929, but out of time from the date of actual decision 11th February 1929. It is true that the Court has no power to extend the time of limitation. But in the circumstances of the case in the interest of justice, I think, the decree ought to be regarded as having been passed on 16th February 1929 on the principle 'actus curiae neminem gravabit' which has been followed in a number of cases of this nature, one of which is referred to by the learned advocate for the petitioner, Civil Revision No. 1077 of 1929, of this Court. This rule is made absolute. The order complained of is set aside and the application for execution will be registered. Same order will apply to the other Rule No. 424 of 1932.


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