Skip to content


Badrinarayan Chetlingia Vs. Baidya Nath Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal143
AppellantBadrinarayan Chetlingia
RespondentBaidya Nath Pal and ors.
Cases ReferredGanendra Kumar Roy v. Shayama Sunder
Excerpt:
- .....realization. on 13th july 1932 the decree-holder put in a petition asking for time to put in a fresh list of properties and such time being granted a fresh list of properties was filed on 27th july 1932. in the meantime on 17th july 1932 the decree became barred in view of the provisions of 48, civil p.c. the question which has been dealt with by the courts below is whether by reason of the application which the decree-holder made on 13th july 1932 the operation of section 48 of the code was avoided. both the courts below have considered the terms of the said application and have come to the conclusion that in no sense can the said application be regarded as an application for execution, so that the fresh list that was submitted on 27th july 1932 may be treated as having been.....
Judgment:

1. This is an appeal by a decree-holder who has been trying to execute his decree for money which he holds against the judgment-debtors. There was an application for execution filed by the decree-holder on 19th December 1931. In that application prayer was made for realizing the decree by attachment and sale of the judgment-debtors' properties. In connexion with that application a list of properties was filed, on 25th February 1932, and these properties having been sold a part of the decree was realized on 9th June 1932 and a balance of little over Rs. 400 remained due after such realization. On 13th July 1932 the decree-holder put in a petition asking for time to put in a fresh list of properties and such time being granted a fresh list of properties was filed on 27th July 1932. In the meantime on 17th July 1932 the decree became barred in view of the provisions of 48, Civil P.C. The question which has been dealt with by the Courts below is whether by reason of the application which the decree-holder made on 13th July 1932 the operation of Section 48 of the Code was avoided. Both the Courts below have considered the terms of the said application and have come to the conclusion that in no sense can the said application be regarded as an application for execution, so that the fresh list that was submitted on 27th July 1932 may be treated as having been supplied in connexion with that application. The said application has been read out to us and we think that the Courts below were right in the view they have taken. Dr. Basak appearing on behalf of the decree-holder has put forward a further contention before us. That contention is based on the original application for execution filed on 19th December 1931. His contention is that application should be regarded as an application which was pending on the date on which the fresh list was supplied. His argument is that inasmuch as in the said application there was a prayer for realization of the entire decree by the sale of the judgment-debtor's properties and in connexion with that application a list of properties was supplied on 25th February 1932 it should be held that it was open to the decree-holder to furnish a fresh list of properties to be sold and that therefore the said fresh list when it was supplied should be regarded as having been filed in connexion with a pending application for execution. We are of opinion that this contention should not be upheld. Our attention has been drawn to a decision of this Court in Ganendra Kumar Roy v. Shayama Sunder 1918 Cal 73 and it has been argued that the said decision supports the contention which has thus been put forward. One point of distinction between that case and the present one apart from any other consideration, is that in that case an application for execution was made by the decree-holder in accordance with law, and on the objection of the judgment-debtor it was discovered that the properties specified in the list of properties to be sold were properties which could not be sold for the realization of the decree and upon that the decree-holder furnished a supplementary list with a prayer that it should be taken as part of the original application.

2. In the present case all the reliefs that the decree-holder asked for in the application of 19th December 1931 were granted to him by the executing Court and all such properties as he desired to put up to sale for realizing his decree were sold and nothing further remained to be granted on the basis of that application. In such circumstances we think it would not be right to treat the Original application as a pending one so as to give the decree-holder the benefit of that application and allow him to regard it as pending for the purpose of a fresh prayer for realization of the balance of the decree by sale of the other properties. We think the present application in connexion with which this appeal has been preferred is barred by the provisions of Section 48 of the Code. The appeal is dismissed. Costs of the minor respondents represented by the Deputy Registrar of this Court having been already paid there will be no further order for costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //