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Nanda Lal Marwari Vs. Rampal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.1
AppellantNanda Lal Marwari
RespondentRampal Singh and ors.
Cases ReferredImam Ali v. Baij Nath Ram Sahu
Excerpt:
acknowledgment - existence of decree--insolvency petition--acknowledgment by one of several judgment-debtors, effect of--extent of acknowledgment--limitation act (xv of 1877), section 19. - .....execution of decrees which were held by the lower appellate court to be barred by limitation. the decree-holder appeals.2. it is first argued on his behalf that limitation is saved by the fact that the execution of his decrees was suspended from the 11th march 1905 to the 31st march 1906 by an order under section 273 of the old code of civil procedure staying the execution.3. we find it impossible to deal with this contention without knowing precisely what was the order passed in execution case no. 52 of 1905 staying the execution and what was the application dated the 16th november 1905 by the decree-holder. neither this order nor the application is before us and, in their absence, it is impossible for us to dispose of the point. but, in the view that we take of the second point raised.....
Judgment:

1. These appeals arise out of as many applications for execution of decrees which were held by the lower Appellate Court to be barred by limitation. The decree-holder appeals.

2. It is first argued on his behalf that limitation is saved by the fact that the execution of his decrees was suspended from the 11th March 1905 to the 31st March 1906 by an order under Section 273 of the old Code of Civil Procedure staying the execution.

3. We find it impossible to deal with this contention without knowing precisely what was the order passed in Execution Case No. 52 of 1905 staying the execution and what was the application dated the 16th November 1905 by the decree-holder. Neither this order nor the application is before us and, in their absence, it is impossible for us to dispose of the point. But, in the view that we take of the second point raised by the decree-holder-appellant, it is unnecessary to say more on this matter.

4. The second point taken is that limitation is saved by an acknowledgment of the liability contained in an application by the judgment-debtor, dated the 14th May 1903, to be declared an insolvent.

5. Under Section 345(e), the judgment-debtor in such an application was bound to state the amount and particulars of all pecuniary claims against him, and in the schedule purporting to give an exhaustve list of these pecuniary claims, we find Nandlal Marwari's decree, in execution of which the petitioner was arrested, together with other four decrees amounting to Rs. 1,209. Both the Courts below held that this was not an acknowledgment of liability, the lower Appellate Court, following the decision in Imam Ali v. Baij Nath Ram Sahu 10 C.W.N. 551 : 3 C.L.J. 576 : 33 C. 613. This case, however, has not been followed and it is not now contested by the learned Pleader for the respondents that an acknowledgment of this kind can save the running of limitation; but he contends that these liabilities mentioned in this schedule are not proved to be the decrees which are now under execution. On this point, the learned District Judge said: In the second place, in the insolvency petition the vaguest possible allusion has been made and no particulars have been given for the identification of those particular decrees.' But the learned District Judge did not go on to find that these particular decrees were not proved to be those mentioned in the insolvency petition. He branched off them to the consideration of the case we have cited and, on the strength of that case, he said: 'The petition cannot be regarded as an ackno wledgment,'

6. There is no real doubt that these decrees are identical with the decrees mentioned in the petition of insolvency. As regards the decree in execution of which the judgment-debtor was arrested, there can be no possible doubt. The schedule showed that Nand Lal alone had four other decrees--five in all--and it purported to be an exhaustive list of all the defendant's liabilities. Here we have these five decrees under execution and we have no reason for supposing that there are any other decrees of Nand Lal Marwari alone in existence. There does not appear to be any real or substantial controversy in the matter such as would necessitate a remand of this matter to the Court below.

7. The result is, that the existence of these decrees having been acknowledged by the judgment-debtor in his petition of the 14th May 1906, the period of limitation is extended and the decree-holder is entitled to proceed with his execution.

8. The third point taken on behalf of the appellant is, that limitation is saved by a further application of the judgment debtor dated, the 24th Feburary 1908, in which he applied for a set-off on account of these decrees. This point does not appear to have been raised or discussed in the Court below and it is not necessary for us to deal with it now.

9. The learned Pleader for the appellant informs us that he desires only to proceed against Rampal Singh who is the principal judgment debtor and filed this petition for insolvency. Of course, the other judgment-debtors are not bound by that acknowledgment.

10. Accordingly, the appeals will be allowed as against Rampal Singh. The decree-holder will be entitled to proceed with the execution of his decrees against Rampal Singh alone up to the amount stated in the petition of insolvency. The appeals will be dismissed as against the other respondents. The appellant will be entitled to his costs from Rampal Singh, and the respondents, other than Rampal Singh, will be entitled to their costs from the appellant. We assess the hearing fee at one gold mohur in each case.


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