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Lallit Coomar Gangopadhya Vs. Denonath Chuckerbutty - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal633
AppellantLallit Coomar Gangopadhya
RespondentDenonath Chuckerbutty
Cases ReferredAbdul Kureem v. Chukhun
Excerpt:
limitation (act xv of 1877), schedule ii, article 179, clause 4 - application for execution of decree by benamidar. - .....it as assignee of the decree. it is found as a fact that he was a mere benamidar for the original decree-holder. the present application, which is made by a person who has attached the decree, was made on the 9th of december 1880. the question raised is, whether this application is barred by limitation. if the period of limitation runs from the date of the decree there is no doubt that the application is too late. if the period runs from the former application for execution there is no doubt that it is in time. we have, therefore, to say whether an application for execution by a mere benamidar is an application 'in accordance with law' within the meaning of article 179, clause 4 of schedule ii, of the limitation act. it has already been held in abdul kureem v. chukhun 5 c.l.r. 253 that.....
Judgment:

Wilson, J.

1. This is an appeal against an order allowing an application for execution of a decree. The decree bears date the 7th of June 1877, and was in favour of Koilash Nath Dutt Rai. On the 1st of June 1880 one Nobin Chunder Bhattacharjya applied for execution claiming it as assignee of the decree. It is found as a fact that he was a mere benamidar for the original decree-holder. The present application, which is made by a person who has attached the decree, was made on the 9th of December 1880. The question raised is, whether this application is barred by limitation. If the period of limitation runs from the date of the decree there is no doubt that the application is too late. If the period runs from the former application for execution there is no doubt that it is in time. We have, therefore, to say whether an application for execution by a mere benamidar is an application 'in accordance with law' within the meaning of Article 179, Clause 4 of Schedule II, of the Limitation Act. It has already been held in Abdul Kureem v. Chukhun 5 C.L.R. 253 that where a decree is held in the name of benamidar the proper person to apply for execution is the real decree-holder, and in that view we fully concur. It follows that an application by the benamidar is not an application in accordance with law.

2. The appeal will, therefore, be allowed, and the order for execution set aside with costs in all Courts.


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