Skip to content


Jnanendra Nath Bose Vs. Khulna Loan Co., Ld. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in24Ind.Cas.35
AppellantJnanendra Nath Bose
RespondentKhulna Loan Co., Ld.
Excerpt:
civil procedure code (act v of 1908), section 48 - limitation act (ix of 1908), schedule i, article 182, clause 7--execution of decree--decree directing mortgaged properties to be sold and if sale--proceeds be insufficient, balance to be realised from other, properties and persons of judgment--debtors--application for execution after twelve years from date of decree, if barred. - .....property had been sold. it appears to us that a direction of such a kind would certainly not be a direction to pay money at a certain date. the date would not be certain.3. next, it has been argued that the first application for execution against the person and other properties of the judgment-debtor might be regarded as an application for an order under section 90 and the order passed thereon might be regarded as a decree. applications for execution are ordinary applications for the attachment of property and boar no resemblance whatever to an application under section 90. no reason really has been shown to us, for supposing that the application of 1908 for execution was in any way an application for a decree under section 90.4. we think, therefore, that the appeal must be decreed and.....
Judgment:

1. This appeal arises out of execution of a mortgage decree. It was directed in that decree that the mortgaged property should be sold and if the proceeds of the sale were insufficient, the balance should be realized from the other properties and the persons of the judgment-debtors. This application was presented more than 12 years after the date of that decree. The learned Subordinate Judge has hold that there were virtually two decrees at that time and that the period of 12 years did not run until what he regards as the second decree under Section 90 of the Transfer of Property Act, 1882, became operative and capable of execution. Accordingly he held that the application was not barred, basing his decision on the case of Chandi Charan Roy haudhuri v. Ambika Charan Butt 31 C. 792.

2. The judgment-debtor appeals, and it is argued that the execution is barred. It appears to us that this contention must succeed. The case cited by the learned Subordinate Judge is not an authority for holding that the decree-holder who has obtained a decree such as is given in tin's case has 12 years for proceeding against the person, and other properties of the judgment-debtor dating from the time when the mortgaged property has been sold. . The point never arose in that case. All that was hold in that case was that when the execution was applied for more than 12 years after the mortgaged property had been sold, the application was barred. But the question whether it was or was not barred before that stage was not raised in that case and was not decided. The terms of Section 48 seem to us to be perfectly clear, and according to that section time runs from the date of the decree. The date of the decree is fixed by Order XX, Rule 6, and we cannot understand Low there can be any other date of the decree from which limitation should run. It has been suggested that this case may be regarded as one in which the decree directed the payment of money to be made at. certain date, namely, after the mortgaged property had been sold. It appears to us that a direction of such a kind would certainly not be a direction to pay money at a certain date. The date would not be certain.

3. Next, it has been argued that the first application for execution against the person and other properties of the judgment-debtor might be regarded as an application for an order under Section 90 and the order passed thereon might be regarded as a decree. Applications for execution are ordinary applications for the attachment of property and boar no resemblance whatever to an application under Section 90. No reason really has been shown to us, for supposing that the application of 1908 for execution was in any way an application for a decree under Section 90.

4. We think, therefore, that the appeal must be decreed and the application refused at being barred by limitation.

5. The appellant will be entitled to his costs in both the Courts. We assess the hearing fee at four gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //