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SumbhudIn Pattuck Vs. Lutful Huq - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal248
AppellantSumbhudIn Pattuck
RespondentLutful Huq
Excerpt:
limitation act (xv of 1877), schedule ii, article 179, and section 15 - application for execution of decree--order staying execution. - .....of february 1877,--that is, before the final order on appeal, on the application to revive the suit, was passed,--the court, of its own motion, struck the execution-case off its file. it thus happens that the judgment-creditor did not make a second application for execution to issue until the 18th december 1880, and it is contended that this application is out of time, it having been made more than three years from the date of the decree. but it seems to us, that this case is met by the 2nd clause of article 179, schedule ii, act xv of 1877. the application to revive the suit really kept the decree open, and that decree did not become final until the order of the appellate court was passed on the 19th december 1877. the result is, that the second application is within time as being.....
Judgment:

Morris, J.

1. We affirm the order of the lower Court allowing execution to proceed, though upon grounds different from those on which the Judge bases his order. The facts of the case are as follow: A decree was passed on the 7th February 1876. The decree-holder applied for execution on the 31st May following. On the 15th November of that year, the judgment-debtor made an application to revive the suit, on the ground that he had no notice of it. This application was rejected on the 15th November 1876, and an appeal by the judgment-debtor against this order was dismissed on the 19th December 1877. But previously to this, that is, upon the entertainment of the application to revive the suit, the Court directed the execution-proceedings to be stayed; and on the 21st of February 1877,--that is, before the final order on appeal, on the application to revive the suit, was passed,--the Court, of its own motion, struck the execution-case off its file. It thus happens that the judgment-creditor did not make a second application for execution to issue until the 18th December 1880, and it is contended that this application is out of time, it having been made more than three years from the date of the decree. But it seems to us, that this case is met by the 2nd Clause of Article 179, Schedule ii, Act XV of 1877. The application to revive the suit really kept the decree open, and that decree did not become final until the order of the Appellate Court was passed on the 19th December 1877. The result is, that the second application is within time as being 'made within three years of the final order of the Appellate Court,' and execution must, therefore, now follow.

2. The appeal is dismissed with costs.

Prinsep, J.

3. Execution of the decree now before us was stayed by an injunction issued by the Subordinate Judge. The decree-holder has applied to execute his decree within three years from the removal of that injunction, but it is contended that execution is barred under Article 179, Schedule ii, Act XV of 1877, and it has been brought to our notice that, under the terms of Section 15 of that Act, a decree-holder would not be entitled to any exclusion of time during which execution was suspended by an injunction in calculation of the period allowed by the Law of Limitation. It might thus happen that, if the injunction remained in force for three years, execution could be absolutely barred. This appears to be the present state of the law. Fortunately it does not operate prejudicially in the present case, because we are able to treat the order passed by the Subordinate Judge, which had the effect of withdrawing the injunction, as the final order of the Appellate Court in the suit; but injustice may arise in another case owing to Section 15 applying only to suits and not to other proceedings.


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