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Sukha Sindhu Sanyal Vs. Jogeswar Bhattacharjee - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.480
AppellantSukha Sindhu Sanyal
RespondentJogeswar Bhattacharjee
Cases Referred and Stevens v. Kampta Pershad
Excerpt:
execution of decree - costs in course of execution proceedings--separate application for realisatian--application for execution against both judgment-debtors--application in accordance with law--limitation act (xv of 1877), schedule ii, article 179 clause (4). - .....on the 27th november 1899. the result was that the appellant was made liable to pay to the decree-holder the costs of the appeals. the fifth application for execution was made in 1899 when a similar objection appears to have been taken and disallowed. this was followed by the sixth execution in 1901 when the present appellant repeated his previous objections to the execution of the decree. he was again unsuccessful in the court of first instance as well as in the court of appeal below and was made liable for costs by the final appellate order passed on the 19th november 1903. subsequently on the 12th january 1904, the judgment-debtors satisfied the decree in part with the result that the execution proceedings were struck off and the decree-holder undertook to give the.....
Judgment:

1. We are invited in this appeal to set aside an order of the Court of Appeal below by which execution has been allowed to proceed on the basis of a decree for costs.

2. It appears that so far back as the 29th October 1895, one Shyama Charan Bhattacharji, now represented by the respondents obtained a decree for rent against the present appellant and another person. There were three infructuous applications for execution in 1896. The fourth application for execution was made in 1898. Objections, the precise nature of which is immaterial for our present purposes, were taken by the appellant, but they were overruled by the Court of first instance. There was an appeal to the District Judge which was equally unsuccessful. The matter was then brought on second appeal to this Court, which was dismissed on the 27th November 1899. The result was that the appellant was made liable to pay to the decree-holder the costs of the appeals. The fifth application for execution was made in 1899 when a similar objection appears to have been taken and disallowed. This was followed by the sixth execution in 1901 when the present appellant repeated his previous objections to the execution of the decree. He was again unsuccessful in the Court of first instance as well as in the Court of Appeal below and was made liable for costs by the final appellate order passed on the 19th November 1903. Subsequently on the 12th January 1904, the judgment-debtors satisfied the decree in part with the result that the execution proceedings were struck off and the decree-holder undertook to give the judgment-debtor a specified time in consideration of the payment made. On the 21st June 1904, the decree-holder, however, made a seventh attempt at execution which failed on the ground that it was premature. In 1905, the decree-holder again applied to execute the decree against both the judgment-debtors. This was his eighth application and he included therein a prayer for realization not only of the balance due under the original decree but also the costs of the previous execution proceedings. A similar prayer had in fact been made in the application of 1901, apparently without any exception taken on that ground by the judgment-debtor to the validity of the proceedings. To the application of 1905, however, the present appellant objected that it was not in proper form inasmuch as it included a prayer for realization of a sum (the original judgment debt) which was jointly payable by both the judgment-debtors as also a prayer for the realization of a sum (the costs of the infructuous objections in execution) payable by one only of the judgment-debtors. The result was that the Court held the application to have been irregularly framed and dismissed it. In 1906, the decree-holder presented two separate applications, one for the realization of the balance of the original judgment debt against both the judgment-debtors and the other for realization of the costs of the previous execution proceedings against the present appellant. In 1907 there was a similar application for realization of the costs of the previous execution proceedings against the appellant. This was followed by an application on the 27th June 1903, which initiated the proceedings now before us. The present application which is for realization of the costs of the previous execution proceedings and is directed against one judgment-debtor only is sought to be resisted on the ground that it is barred by limitation. The Courts below have concurrently overruled this objection On behalf of the appellant it has been contended before us that the application of 1905 cannot be treated as an application in accordance with law, to the proper Court to take a step in aid of execution, and that if this view be adopted, the present application is barred by limitation. It has been argued in substance that the application of 1905 was not in accordance with law as it invited the Court to do something which it was not competent to the Court to do, and in support of this position, reliance has been placed upon the cases of, Hulasi v. Maiku 5 A. 236, Chatter v. Newal Singh 12 A. 64 and Munawar Husain v. Jani Bijai Shankar 27 A. 619 : 2 A.L.J. 376. The first of these cases is an authority for the proposition, that when costs have been directed to be paid in the course of execution proceedings, separate execution may be taken oat for realization of these costs apart from any application to realize whatever is due under the original decree. On this principle, it has been suggested that the application of 1905 was improperly framed and that the proper course for the decree-holder to adopt was to present two applications, one for the realization of the balance of the original decree and the other for realization of the costs of the previous execution proceeding's. It may be conceded that such procedure might have been appropriately adopted by the decree-holder. But that is by no means conclusive upon the question which we have now to decide, namely, whether the application of 1905 was an application in accordance with law, to the proper Court to take a step in aid of execution of the decree? The only defect in the application was, in so far as it was one for realization of the costs of the previous execution proceedings, that the decree-holder prayed for realization thereof not from one judgment-debtor as he should have done, but from both the judgment-debtors. In our opinion, this did not vitiate the application, for it would have been competent to the Court to direct execution to issue against both the judgment-debtors for recovery of the balance of the decree and against one judgment-debtor for realization of the costs of the previous execution proceedings. The cases of Chattar v. Newal Singh 12 A. 64 and Munawar Husain v. Jani Bijai 27 A. 619 : 2 A.L.J. 376 do not militate against this view, and are clearly distinguishable. In the first of these cases, an application was made by the decree-holder to arrest the judgment-debtor, who, under the law, could not have been arrested. In the second case, an application was made by the decree-holder to sell the personal properties of the judgment-debtor at a stage when it was not competent to the Court to sell the personal properties inasmuch as the mortgaged properties had not been exhausted. It is clear, therefore, that in these cases the Court was invited to take action in a manner not contemplated by law. This, however, cannot obviously be affirmed of the application of 1905, in the case before us. We must, therefore, hold that the application of 1905 was of such a character as would save the present application from the bar of limitation. The view we take is supported by the principle explained in the cases of Manorath Das v. Ambica Kant 1 Ind. Cas. 57 : 9 C.L.J. 443 : 13 C.W.N. 533 and Stevens v. Kampta Pershad 10 C.L.J. 19 : 2 Ind. Cas. 941.

3. This result is that the order made by the Court below is affirmed and this appeal dismissed with costs. We assess the hearing fee at three gold mohurs.


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