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Saday Chandra Jana Vs. Poresh Nath Ghose - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.571
AppellantSaday Chandra Jana
RespondentPoresh Nath Ghose
Cases ReferredGopal Chunder Manna v. Gosain Das Kalay
Excerpt:
limitation act (ix of 1908), schedule i, article 182 - step-in-aid of execution--application for relief which court can grant--defective application can save limitation. - .....1917, though defective in form, contained three prayers, namely, first, that as one of the joint decree holders had died the petitioner, who was his legal representative, might be permitted to proceed with the execution of the decree in that character as also in his own right; secondly, that as the other decree holder did not join in the application, an order might be made in the terms of rule 15 of order xxi of the civil procedure code: and thirdly, that inasmuch as one of the judgment-debtors had died, the notice contemplated by rule 22 of order xxi of the code might be issued. it is plain that the execution could not proceed except with leave obtained from the court in each of these respects. now, as was pointed out by this court in the case of stevens v. kamta pershad 2 ind. cas......
Judgment:

1. This is appeal by the judgment-debtor against an order for execution of a decree. The decree was made by this Court on the 2nd December 1912 in an appeal in a rent suit. Within three years of the date of the decree, an application for execution was made. Within three years from the date of the first application for execution a second application for execution was made on the 22nd May 1917. The Court returned this application for amendment on three grounds, namely, first, that the date of the disposal of the previous execution case had not been correctly stated; secondly that the calculation of the dues as stated in the eighth column of the tabular statement was incorrect; and thirdly, that the tenth column had not been duly filled up The application was not amended and re-filed within the time allowed. But a third application was presented on the 12th December 1919 The question in controversy is whether this application is or is not barred by limitation. The Courts below have concurrently held; that the objection of limitation cannot be sustained.

2. The application made on the 22nd May, 1917, though defective in form, contained three prayers, namely, first, that as one of the joint decree holders had died the petitioner, who was his legal representative, might be permitted to proceed with the execution of the decree in that character as also in his own right; secondly, that as the other decree holder did not join in the application, an order might be made in the terms of Rule 15 of Order XXI of the Civil Procedure Code: and thirdly, that inasmuch as one of the judgment-debtors had died, the notice contemplated by Rule 22 of Order XXI of the Code might be issued. It is plain that the execution could not proceed except with leave obtained from the Court in each of these respects. Now, as was pointed out by this Court in the case of Stevens v. Kamta Pershad 2 Ind. Cas. 941 : 10 C.L.J. 19, an application to take a step-in-aid of execution, in order that it may. be in accordance with law, within the meaning of Article 182 of the Schedule I to the Indian Limitation Act, must be one praying for some relief which the Court is competent to grant. The three reliefs which the decree-holder sought were undoubtedly within the competence of the Court to grant. Indeed it was the duty of the Court to issue a notice upon the legal representative of the deceased judgment-debtor, inasmuch as more than one year had elapsed between the date of the decree and the application for execution. From this point of view, it is plain that the application of the 22nd May 1917, even though it be deemed so defective as not to be an application for execution, must still be regarded as an application made to the proper Court in accordance with law to take some steps in-aid of execution. This view is supported by a long series of decisions. Thus in the, case of Srinivasa Aiyangar v. Dharni Mudaly 17 M.L.J. 475 it was ruled, on the authority of the decision in Pitam Singh v. Tota Singh 29 A. 301 : 4 A.L.J. 184 A.W.N. (1907) 74, that an application by a legal representative of a decree-holder for an order recognising him as a decree-holder is not prohibited by the Civil Procedure Code and consequently such an application is a step-in-aid of execution within the meaning of Clause 4 of Article 179 of the Indian Limitation Act of 1877. Again, in the case of Mahalinga Moopanar v. Kuppanchariar 17 M.L.J. 485 : 3 M.L.T. 21 : 30 M. 541, it was ruled that as there was nothing in Section 232 of the Code of 1882 to prohibit a transferee-decree-holder from applying for and obtaining an order under Section 368 of that Code to bring in the representative of a defendant on record, an application for the purpose, is a step in-aid of execution within the meaning of Clause 4 of Article 179 of the Limitation Act, Finally, in the case of Kamakshi Pillai v. Ramasany Pillai 18 M.L.J. 14, it was ruled, on the authority of the decision of a Full Bench of this Court in Gopal Chunder Manna v. Gosain Das Kalay 25 C. 691 : 2 C.W.N. 556 : 13 Ind. Dec. (N.S.) 392, that an application for execution, though defective in form, may help to save limitation, if it contains a prayer for the issue of a notice under Section 248 of the Code of Civil Procedure of 1882, in a case in which such notice is necessary in order to enable execution to proceed.

3. We are of opinion, for the reasons assigned, that the objection of limitation has been rightly overruled and that this, appeal must be dismissed with costs. Hearing fee, one gold mohur.


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