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Goberdhun Lall Vs. Behary Lall and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal446
AppellantGoberdhun Lall
RespondentBehary Lall and anr.
Cases ReferredMungul Pershad Dichit v. Grija Kant Lahiri I.L.R.
Excerpt:
execution of decree - limitation applicable to execution of a decree passed previous to the 1st october 1877--limitation acts (ix of 1871, article 167, and xv of 1877, article 179)--general clauses consolidation act (i of 1868), section 6, effect of. - .....their lordships of the judicial committee. but they hold that all applications for execution of a decree are applications in the suit which resulted in that decree: therefore the application for execution in this case must be considered to have been made in a proceeding which commenced before act xv of 1877 came into operation. it is true that the limitation act of 1871 was repealed by the act of 877, but this repeal under section 6 of act i of 1868 cannot affect any proceedings commenced before the repealing act came into operation, there being nothing in the subject or context of the repealing act repugnant to this provision.5. it may be said that the subject of the act in question is such that it precludes the operation of section 6 of act i of 1868; that a limitation act is an act.....
Judgment:

Mitter, J.

1. The question in this case is whether the decree obtained by the respondent against the appellants on the 17th January 1877 is barred by limitation. The lower Court has held that it is not barred, because an application had been made by the decree-holder within three years from the present application in order to bring certain property of the judgment-debtors to sale in execution. In its opinion the present case is governed by Article 179 of the present Limitation Act, viz., Act XV of 1877. The words of Article 179, which, in the opinion of the lower Court, save the decree from being barred, are as follows: 'The date of applying in accordance with law to the proper Court to take some step in aid of execution of the decree or order.' The lower Court was of opinion that an application for the sale of a judgment-debtor's property is one that comes within these words.

2. In the corresponding article of the Limitation Act of 1871, viz., Article 167, these words are not to be found. The appellants contend that the lower Court is in error in deciding the question of limitation according to the provisions of the new Limitation Act. It should have decided it with reference to Article 167 of the Limitation Act of 1871, inasmuch as the decree, which is sought to be executed, was passed when that Act was in force.

3. The present application for execution was made to the lower Court for the 2nd June 1881, and the present Limitation Act came into force on the first day of October 1877. The question we have to decide is, whether this application is governed by the Limitation Act of 1877 or of 1871. It is contended on behalf of the appellants that this application must be considered to have been made in the suit which resulted in the decree of the 17th January 1877; and that the aforesaid decree not being yet satisfied, the application was made in a proceeding which was pending on the date when the new Act came into operation; and that, therefore, under Section 6, Act I of 1868, the new Act cannot affect the application in question which was made in a pending proceeding. In support of this contention the learned pleader for the appellants has cited before us the decision of the Judicial Committee of the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R.8 Cal. 51. In that case the decree was passed when Act XIV of 1859 was in force, but the application for execution was made after the Limitation Act of 1871 had come into operation. The question for decision was, whether the application for execution was governed by the Act of 1859 or that of 1871. Their Lordships held that it was not governed by the Act of 1871. 'The Act,' their Lordships said, 'was to come into force on the 1st of July 1871, but it was enacted by Section 1 that nothing contained in Section 2 or in Part II should apply to suits instituted before the 1st of April 1873. It appears to their Lordships that a thing which applies to an application in a suit applies to the suit, and that an application for the execution of a decree is an application in the suit in which the decree was obtained, and that as regards suits instituted before the 1st of April 1873 all applications in it are excluded from the operation of the Act.

4. There is no provision in the Act of 1877 corresponding to that of Section 1 of the Act of 1871, referred to above by their Lordships of the Judicial Committee. But they hold that all applications for execution of a decree are applications in the suit which resulted in that decree: therefore the application for execution in this case must be considered to have been made in a proceeding which commenced before Act XV of 1877 came into operation. It is true that the Limitation Act of 1871 was repealed by the Act of 877, but this repeal under Section 6 of Act I of 1868 cannot affect any proceedings commenced before the repealing Act came into operation, there being nothing in the subject or context of the repealing Act repugnant to this provision.

5. It may be said that the subject of the Act in question is such that it precludes the operation of Section 6 of Act I of 1868; that a Limitation Act is an Act of procedure relating to suits; and that Acts relating to procedure, from the nature of their subject, apply to all pending proceedings from the date when they came into operation.

6. This question has been fully discussed by Westropp, C.J., in Ratansi Kalianji I.L.R., 2 Bom., 148. After an elaborate discussion of the cases bearing upon the point he came to the conclusion that the rule in question is confined only to the procedure in Courts of Justice, no way prejudicing any of the parties to the suit.

7. The present application is, therefore, governed by Article 167 of the Limitation Act of 1871, and as it was not made within any one of the periods given in the third column of that article, it is barred by limitation. We, therefore, reverse the judgment of the lower Court, and decree this appeal with costs.


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