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Sanaton Sant and anr. Vs. Dinabandhu Giri and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.622
AppellantSanaton Sant and anr.
RespondentDinabandhu Giri and anr.
Cases ReferredBrojolal v. Tara Prasanna
Excerpt:
limitation act (ix of 1908), schedule i, article 182 - execution of decree--decree incapable of execution--amendment--limitation. - .....order xxxiv, rule 4, civil procedure code. on the 4th june 1913 an application was made for a final decree. on the 10th july 1913, an order was recorded in the following terms : service of notice on the defendants proved. no objection is raised. the period of redemption fixed in the decree has expired. no payment appears to have been made. ordered that the decree be made absolute.' on the basis of this order, a final decree was drawn up under order xxxiv, rule 5, civil procedure code. on the 18th august 1916 the decree holders put in a petition for amendment of the final decree. thereupon the following order was recorded on the 26th august 1916 : 'it appears that the clerk who wrote the final decree in this suit did not write therein the names of the decree-holders and of all the.....
Judgment:

1. This is an appeal by the judgment-debtors against an order for execution of a mortgage-decree and for sale of the properties covered thereby. The mortgage suit, which was instituted on the 23rd March 1910, resulted in a preliminary decree on the 19th June 1910 under Order XXXIV, Rule 4, Civil Procedure Code. On the 4th June 1913 an application was made for a final decree. On the 10th July 1913, an order was recorded in the following terms : Service of notice on the defendants proved. No objection is raised. The period of redemption fixed in the decree has expired. No payment appears to have been made. Ordered that the decree be made absolute.' On the basis of this order, a final decree was drawn up under Order XXXIV, Rule 5, Civil Procedure Code. On the 18th August 1916 the decree holders put in a petition for amendment of the final decree. Thereupon the following order was recorded on the 26th August 1916 : 'It appears that the clerk who wrote the final decree in this suit did not write therein the names of the decree-holders and of all the judgment debtors. Hence it is ordered that the said decree be amended by writing therein the names of the decree-holders and judgment-debtors. I should add here that the clerk is no longer attached to this Court and so I myself cannot take any notice of his neglect of duty.' On the 9th July 1919 an application for sale of the mortgaged properties was made by the decree-holders. The Court of first instance dismissed the application as barred by limitation. Upon appeal, the District Judge has reversed that order and directed execution to proceed.

2. On the present appeal, it has 'been contended on behalf of the judgment debtors that the application is barred by limitation, as time ran, not from the 26th August 1916, when the amended decree was prepared, but from the 10th July 1913 when a final decree was first drawn up. We are of opinion that this contention should not prevail,

3. It is clear that the final decree as drawn up on the basis of the order of the 10th July 1913 was incapable of execution. It did not set out the name of any of the decree-holders or the names of the judgment-debtors except one. In this respect, it did not fulfil the requirements of Rule 6 of Order XXI of the Code of Civil Procedure. On these facts, the principle enunciated by Sir John Edge, C.J., in the case of Muhammad Suleman Khan v. Muhammad Yar Khan 17 A. 39 : A.W.N. (1894) 191 : 8 Ind. Dec. (N.S.) 349 applies. In that case, the decree as originally framed was found by the High Court to be incapable of execution. It was not finally amended by that Court, so as to become capable of execution, until nearly 12 years after it was passed. It was held that an application to execute such decree, which was made within three years from the date of the amendment, was within time--the rule of limitation applicable being that prescribed by Article 179 of Schedule II of the Limitation Act, 1877, The first paragraph of the third column of Article 179 only applies when there is a decree or order which can be executed ; that paragraph necessarily contemplates the existence of a decree capable of execution at the date of the decree. The same principle was applied in Behari v. Risal 5 A.L.J. 403 : A.W.N. (1903) 191. In that case the decree absolute did not set out a description of the properties directed to be sold. On the other hand, the decree as drawn up ordered the sale of a non-existent Village and was consequently incapable, of execution. In these circumstances, the Court held that time ran, not from the date when the order absolute was originally made, but from the date when a proper decree capable of execution was drawn up. We do not lay down the proposition that wherever a decree is amended time runs from the date of the amendment; the principle adopted in the two cases just mentioned is that where the original decree is incapable of execution, time runs from the date when a proper decree capable of execution has been drawn up. Reference may in this connection be made to Brojolal v. Tara Prasanna 3 C.L.J. 188, where the distinction between amendments of different scopes is explained.

4. We are, accordingly, of opinion that the view taken by the District Judge is correct and that this appeal must be dismissed with costs. Hearing fee one gold mohur.

5. The Review Rule is discharged without costs. The Rule for stay of proceedings is also discharged without costs.


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