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Bhaobunessury Vs. Judobendra NaraIn Mullick - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal869
AppellantBhaobunessury
RespondentJudobendra NaraIn Mullick
Excerpt:
limitation act (xv of 1877), schedule ii. article 164 - code of civil procedure (x of 1877), section 108--ex parte decree--setting aside ex parte decree. - .....we think that the view taken by the lower court was perfectly correct, and that it was incumbent on the defendant judgment-debtor to show that he made his application under section 108 within thirty days from the date of the first process in execution of the decree passed against him. having failed to do so, his application was correctly disallowed as barred. the appeal is, therefore, dismissed with costs.
Judgment:

Prinsep, J.

1. The lower Appellate Court has held that the application under Section 108 of the Code of Civil Procedure of 1877 is barred, inasmuch as it was not made within thirty days from the date of executing the process, that is, the attachment in execution of the ex-parte decree. For the judgment debtor it is contended that there was no such attachment made, and that this application is in time. The lower Court, however, held that in the absence of any evidence on the part of the defendant, it would, under Section 114 of the Evidence Act, presume that the attachment was properly made.

2. We think that the view taken by the lower Court was perfectly correct, and that it was incumbent on the defendant judgment-debtor to show that he made his application under Section 108 within thirty days from the date of the first process in execution of the decree passed against him. Having failed to do so, his application was correctly disallowed as barred. The appeal is, therefore, dismissed with costs.


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