Skip to content


Bama Sundari Dasya Vs. Kiran Chandra Alias Harabllash Sikdar and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal322,49Ind.Cas.497
AppellantBama Sundari Dasya
RespondentKiran Chandra Alias Harabllash Sikdar and anr.
Cases ReferredJoyanuddin Khan v. Jamiruddin Sarkar
Excerpt:
civil procedure code (act v of 1908), section 48(1)(b) - execution of decree--instalments, default in payment of--limitation. - .....us that this provision in the decree left it at the option of the decree holder on or after the default in september 1902 to take out execution either for that instalment of for the whole of the decree. in support of that contention reference has been made to the cases reported as niimadhub ckuckerbutty v. ramsodoy ghose 9 c. 857 : 4 ind. dec. (n.s.) 1221 and judhistir patro v. robin chandra khela 13 c. 73 : 6 ind. dec. (n.s.) 546. it is possible that if the decree had provided that it would be in the option of the decree-bolder on the occurrence of any one default to take out execution either for the instalment in default or for the whole decretal amount, it might be in that event that the cases cited would be applicable. but, the decree before us, it has been found, is not in those.....
Judgment:

1. This appeal is against an Order made under the provisions of Section 47, Civil Procedure Code, and the only, question that arises is whether a certain application for execution is burred by the provisions of Section 48(1)(b) of the said Code.

2. It appears that in the year 1901 a decree was passed for the payment of a certain sum of money, the said sum to be paid in four equal instalments, the first becoming payable in September 1902 and the other three in February 1904, 1903 and 1906 respectively. As a matter of fact after this decree nothing has been paid.- The present application was made on the 12th February 1916.: On that dale under the provisions of Section 48-(1) (6) the instalment that became due -in 'September 1902 was clearly barred. The question is, whether the remaining three instalments are also barred. The decree itself is not forthcoming, and as ' to the contents- thereof the two Courts below had to proceed first on an entry in the register of civil suits -and an application made by the decree holder for execution On the occurrence of the first default on or after September 1902. Preferring the statement made at that time by the decree-holder to the entry appearing in the register of civil suits the Courts below have held that it was provided in that decree that on any one 'default the whole decretal amount should become payable. We cannot say that on the materials before them the Courts below took an erroneous view as to the contents and the provisions of the decree.

3. But it is argued before us that this provision in the decree left it at the option of the decree holder on or after the default in September 1902 to take out execution either for that instalment of for the Whole of the decree. In support of that contention reference has been made to the cases reported as Niimadhub Ckuckerbutty v. Ramsodoy Ghose 9 C. 857 : 4 Ind. Dec. (N.S.) 1221 and Judhistir Patro v. Robin Chandra Khela 13 C. 73 : 6 Ind. Dec. (N.S.) 546. It is possible that if the decree had provided that it would be in the option of the decree-bolder on the occurrence of any one default to take out execution either for the instalment in default or for the whole decretal amount, it might be in that event that the cases cited would be applicable. But, the decree before us, it has been found, is not in those terms. On the contrary it comes within the scope of the oases of which the case reported as Joyanuddin Khan v. Jamiruddin Sarkar 37 Ind. Cas. 916 : 21 C.W.N. 835 is an instance. On the' authority of that case we must hold that when the present application for execution was made the whole decree was barred. We, therefore, dismiss this 'appeal. We make no order as to costs.

4. For the reasons given in the judgment in the appeal Rule No. 663 of 1917 is discharged.


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