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Rafatulla Farazi Vs. Kundarmal Agarwalla and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1935Cal230,155Ind.Cas.723
AppellantRafatulla Farazi
RespondentKundarmal Agarwalla and anr.
Excerpt:
- .....that a prima facie case had been made out showing that the application for execution was not time-barred was a finding arrived at ex parte. it was after that finding that notice was served on the judgment-debtors. but neither of the parties thereafter came to court and got any decision on the question of limitation which arose. the ex parte order which had been recorded against the judgment-debtor and which was to the effect that the application for execution was prima facie within time cannot, in our opinion, be taken to operate as res judicata or by way of estoppel on any principle analogous to it.3. the result is the question whether the second application for execution was within time or not is a question which can be raised by the judgment-debtor even on the present.....
Judgment:

1. This appeal must be allowed. The judgment-debtor is the appellant in this appeal. He objected to the execution that was being taken against him on the ground that the execution was barred by limitation. The facts necessary to be stated are that on the second occasion when the decree was sought to be executed the application for execution was filed on 1st September 1931 a date which was prima facie 13 days beyond three years from the date on which the first application for execution was disposed of. On receipt of this application for execution the executing Court made an order on the decree-holders asking them to show that the application was not barred by limitation. On the date fixed for the aforesaid purpose one of the decree-holders was examined and the Court recorded an order that limitation had been prima facie proved,' obviously meaning that the application was not barred by limitation. At the same time the Court issued notice to the judgment-debtor to show cause why the execution should not be proceeded with against him and the fixed the case for 28th November 1931. On the date last mentioned an order was recorded in the order-sheet which shows that the notice which had been issued on the judgment-debtor had been served but the judgment-debtor did not appear and that the decree-holders also were absent and had taken no steps.

2. The Court on those facts made an order dismissing the second application for execution. The present execution case was then started by filing an application on 9th January 1932. On the facts stated above the judgment-debtor's contention was that the second application for execution had been filed beyond the period of limitation which would be allowable under the law. The Courts below have concurrently overruled this objection holding that by reason of the order which the executing Court had made on the second application the plea that the second application was barred by limitation is no longer open to the judgment-debtor. We are of opinion that this view of the Courts below cannot possibly be supported. The finding that a prima facie case had been made out showing that the application for execution was not time-barred was a finding arrived at ex parte. It was after that finding that notice was served on the judgment-debtors. But neither of the parties thereafter came to Court and got any decision on the question of limitation which arose. The ex parte order which had been recorded against the judgment-debtor and which was to the effect that the application for execution was prima facie within time cannot, in our opinion, be taken to operate as res judicata or by way of estoppel on any principle analogous to it.

3. The result is the question whether the second application for execution was within time or not is a question which can be raised by the judgment-debtor even on the present application. The appeal is accordingly allowed and the decisions of the Subordinate Judge and of the Munsiff are set aside and the case is sent back to the Court of first instance so that the parties may now be given an opportunity to produce such evidence as they may desire to do in support of their respective contentions as regards the second application for execution being time barred or within time. Costs of this appeal, hearing fee being assessed at two gold mohurs, will abide the result.


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