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Dewan Ali Vs. Soroshibala Dabee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal297
AppellantDewan Ali
RespondentSoroshibala Dabee
Excerpt:
execution of decree - civil procedure code (act x of 1877), section 230--'passing of the act'--meaning of the expression 'granted' in section 230. - .....application it would seem that it was not admitted, but rejected, because it was informal. the present application, which was made on the 11th september 1880, was, under such circumstances, not a second application within the meaning of the section (230) of the code. that section provides, that if an application for execution has been made under that section and granted, no subsequent application to execute the same decree shall be granted after the expiration of twelve years from (in the present case) the date of the decree. taking the facts in the present case to be, that the only application which has been made under section 230 is the application of the 30th january 1880, it seems that, although that application was made under section 230, it was not granted so as to render the.....
Judgment:

Prinsep, J.

1. The objection taken against the order of the District Judge, disallowing the application for execution of decree, is, that Section 230 of the Civil Procedure Code, under the last paragraph of which the Judge has acted, does not apply. The facts have not been stated by the Judge in his judgment, but, as represented by the decree-holder's pleader, they appear to be as follows:

2. The decree was passed on the 29th May 1865, and was confirmed on appeal on the 9th December of the same year.

3. The previous application for execution was made in September 1877, that is before the Code of 1877 came into force. The next application for execution was made on the 30th January 1880, but from the order passed on that application it would seem that it was not admitted, but rejected, because it was informal. The present application, which was made on the 11th September 1880, was, under such circumstances, not a second application within the meaning of the Section (230) of the Code. That section provides, that if an application for execution has been made under that section and granted, no subsequent application to execute the same decree shall be granted after the expiration of twelve years from (in the present case) the date of the decree. Taking the facts in the present case to be, that the only application which has been made under Section 230 is the application of the 30th January 1880, it seems that, although that application was made under Section 230, it was not granted so as to render the subsequent application now before us an application within the terms of that section. The expression 'granted' in the 3rd paragraph of Section 230 would seem the equivalent to the term 'admitted' as used in Section 245,--that is to say, when the application has been found to be formal and regular, it is admitted or granted and made the basis of proceedings towards execution of the decree.

4. The order of the lower Court must, therefore, be set aside.

5. The decree-holder will be at liberty to continue the proceedings in execution on the application which is now before us.

6. The appellant is entitled to his costs.


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