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Rajendra Lal Saha Vs. Abdul Karim and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal572,76Ind.Cas.455
AppellantRajendra Lal Saha
RespondentAbdul Karim and ors.
Cases ReferredNarsingh Dayal Singh v. Kali Charan Singh
Excerpt:
limitation act (ix of 1908), schedule i, article 182 (5) - execution of decree--application for time to cite witnesses, whether step-in-aid of execution. - .....under section 47, civil procedure code. on the next date of hearing (28th april 1917), the decree-holder put in a petition to the following effect:--'judgment-debt or no. 3 having raised objection to the attachment, it is necessary to file written statement and cite witnesses after obtaining copy of the objection. it is accordingly prayed that a month's time may be granted to me the decree-bolder for adducing evidence against the objections of judgment-debtor no. 3.' the case was adjourned to 26th may 1917 along with the miscellaneous cases (the casts under section 47). on the 26tn may 1917 it was again adjourned to 23rd june 1917 and again on that day to 25th june 1917. on the 25th june 1917 the following order was passed:--'the decree-holder's pleader stated that he will not.....
Judgment:

1. These appeals arise out of proceedings in execution of decrees.

2. The decrees were obtained on the 22nd May 1908 and the 13th June 1908 respectively. It is unnecessary to refer to the previous execution proceedings. The last execution proceedings were started on the 27tn November 1916. On the 17th April 1917 the judgment-debtor put in Claims which were registered under Section 47, Civil Procedure Code. On the next date of hearing (28th April 1917), the decree-holder put in a petition to the following effect:--'Judgment-debt or No. 3 having raised objection to the attachment, it is necessary to file written statement and cite witnesses after obtaining copy of the objection. It is accordingly prayed that a month's time may be granted to me the decree-bolder for adducing evidence against the objections of judgment-debtor No. 3.' The case was adjourned to 26th May 1917 along with the miscellaneous cases (the casts under Section 47). On the 26tn May 1917 it was again adjourned to 23rd June 1917 and again on that day to 25th June 1917. On the 25th June 1917 the following order was passed:--'The decree-holder's Pleader stated that he will not prosecute this case any further. The execution case is dismissed for non-prosecutoin.' The miscellaneous cases were dismissed the next day (26th June 1917).

3. The present application was made on the 26tl April 1920 and is prima facie barred by limitation. The decree-holder relied upon the petition made by him on the 28th April 1917 for time as constituting a step-in-aid of execution, and if that is a step-in-aid of execution the present application would be in time.

4. A question was raised whether the application dated the 28th April 1917 was in the execution cases, or in th objection cases. But both the proceedings were held in the same Court, and the number of both the proceedings appear in the application. The execution casts were ordered to come on for hearing along with the objection cases, and it is accordingly contended that it was necessary to take steps to remove the bar to the execution by adducing evidence to meet the objections raised by the judgment-debtor.

5. It has been held that an application by the decree-bolder to summon witnesses in a proceeding originating on a claimant's application objecting to the attachment of property in execution, is a step-in-aid of execution. See Au Muhammad Khan v. Gur Prasad 5 A. 344 : A.W.N. (1883) 57 : 3 Ind. Dec. (N.S.) 331. Similarly, an application by the decree-holder to summon witnesses for determining the standard of measurement to meet the objections raised by the judgment-debtor to the delivery of possession of certain properties in execution has been hold to be a step-in-aid of execution. [See Kedar Nath Dey Roy v. Lakhi Kanta Dey 40 Ind. Cas. 1005 : 21 C.W.N. 868 : 26 C.L.J. 115].

6. It is not necessrary to refer to similar other cases cited before us, because there was no application for adjournment in those cases. The question in this case is whether an application for time to cite witnesses to meet the objection raised by the judgment-debtor, or to do some other act, is a step-in-aid of execution. The decisions on the. point are not uniform. For instance, in the case of Abdul Hossein v. Fazilun 20 C. 255 : 10 Ind. Dec. (N.S.) 173, an application by the decree-holder stating that he had, at the request of the judgment-debtor, released some of the properties attached, and asking the Court to postpone the sale, the attachment on the remainder of the property being maintained, was held not to be a step-in-aid of execution, as the postponement of the sale had the effect, temporarily, at all events, of retarding the execution.

7. In the case of Tarak Chunder Sen v. Gyanada Sundari 23 C. 817 : 12 Ind. Dec. (N.S.) 543, the learned Judges, Petheram, C.J., and Rampini, J., observed as follows:--'The most favourable way in which the position may be described for the decree-bolder is to spy that the application of the 16th of March 1891 was an application for further time to proceed with the pending execution proceeding, and then the question is whehter, if the Court mace an order granting the further time asked, such an order is a step-inlaid of the execution. It is not necessary to do mere than state the proposition to see that it is not under the Civil Procedure Cede. Decrees are executed by trie Court on the application of the parties, and a step-in-aid of execution means a step taken by the Court to wards executing the decree. The mere granting of further time to make an application or to deposit money cannot be said to be such 0 step, as the taking of it dots not assist the Court in executing the decree or advance the execution proceeding in any way.' In the case of Kartick Nath Pandey v. Juggernath Ram Marwari 27 C. 285 : 14 Ind. Dec. (N.S.) 188, the decree-holder applied for time to procure certain extracts and the next day the Court ordered him to produce the extracts in a day. On the next day, the decree-holder applied for further time which was refused and the execution case was struck off. Subsequently, the decree-holder made an application for review of the order striking off the execution. It was held that the applications for time which did not further the execution of the decree but rather retarded it, were not applications to take a step-in-aid of execution. The application for review, however, was held to be such an application.

8. In the case of Troylokya Nath Bose v. Jyoti Prokash Nandi 30 C. 761 : 8 C.W.N. 251, it was held that an application by the decree-holder to postpone a sale, not with 9 view to enable him to bring the property to sale more advantageously for him but upon other grounds, is not application to take some steps-in-aid of execution.

9. On the other hand, in the case of Narsingh Dayal Singh v. Kali Charan Singh 5 Ind. Cas. 147 : 14 C.W.N. 486, it was held that an application for adjournment to enable the decree-holder to adduce evidence of service of notice under Section 248, Civil Procedure Code, is an application made in order to obtain from the Court en order in furtherance of the execution of the decree, and that such an application, even though refused, is a step-in-aid of execution.

10. The later casts of this Court which have been cited before us were net carts where any application for time was mare and, therefore, have net much baring upon the question before us.

11. In the Bombay High Court, however, in tie care of Haridas Nanabhai v. Vithaldas Kisandas 17 Ind. Cas. 30 : 36 B. 633 : 14 Bom L.R. 765, an application for time to enable the applicant to obtain copies of decree and judgment made after presenting a daskhast to execute a decree was held to be a step-in-aid of execution, disserting from Kartick Nath Pandey v. Juggernath Ram Marwari 27 C. 285 : 14 Ind. Dec. (N.S.) 188. In Abdul Kadir Rowther v. Krishna Malcnal Nair 23 Ind. Cas. 533 : 38 M. 605 : 1 L.W. 271 : (1914) M.W.N. 563 : 26 M.LJ. 433 : 15 M.L.T. 305, an oral application by decree-holder for an adjournment to enable him to produce records or evidence necessary to effectively conduct the execution proceeding further was held to be an application to get an order in aid of execution. 9. It will appear, therefore, that the decisions on the point are not uniform. But we think that the question whether an application is or is not a step-in-aid of execution, must depend upon the circumstances of each care. In the present case the objections under Section 417 were filed on the 17th April 1917 and on the 28th April 1917, the decree-holder applied for time for obtaining copies of the objections and citing witnesses. The case was adjourued to 26th May then to the 23rd of June and again to the 25th of June. No written statement was necessary to be filed and no witness was, as a matter of fact, cited. Or the 25th June, the decree-holder's Pleader stated that he would not prosecute the case any further and the execution case was accordingly dismissed for non-prosecution. It became unnecessary, therefore, to proceed with the objection cases which were disposed of on the next day.

12. It is not clear whether in the Madras case cited above the decree-holder filed the 'encumbrance certificate' for the production of which he applied for adjournment. In the Bombay case the decree-holder did not file the copies for the production of which adjournment was obtained. In the case of Narsingh Dayal Singh v. Kali Charan Singh 5 Ind. Cas. 147 : 14 C.W.N. 486, the application for adjournment to produce evidence of service of notice uner Section 248, Civil Procedure Code was refused by the Court. In all these cases the decree-holder applied for adjournment to produce some evidence which presumably could not be produced at once. In the present case, objections to the execution of the decree were filed on the 17-th April, and on the 28th April, the decree-holder filed an application not for summoning witnesses, but for time to cite witnesses.

13. Although an application to the Court to issue summons or do some other act necessary for proceeding with the execution case, or for removing a bar to the execution proceedings, would be a step-in-aid of execution, we feel some difficulty in holding that an application for time to cite witnesses irrespective of whether the decree-holder does so or not, is a step-in-aid of execution. It is said that, although no witness was cited in the present case the decree-holder on the 28th April intended to do so. The Court of first instance, however, observed as follows: 'The real object of the decree-holder is to be seen. The decree-holder applied for time but he allowed the execution cases to be dismissed for non-prosecution. So the intention of the decree-holder was to retard the execution and not to take steps-in-aid of execution as is now argued before us...there was no necessity to file written statement in objection case under Section 47, Civil Procedure Code. Moreover, the decree-holders cited no witness and took no steps to produce their witnesses. The result was that the execution cases were dragged for two months more and dismissed for the decree-holder's default.' The lower Appelate Court evidently was also of the same opinion. It says: 'In these appeals the application was for time to take copies to file a statement. Its effect was merely to prolong the proceedings. The decree-holder did no act and was not asking for time to perform an act enjoined either by law or by a specific direction of the Court.'

14. Without laying down any general rule on the point, we are of opinion, having regard to all the circumstances of these cases, that the application for time filed by the decree-holder in the present case on the 28th April 1917 did not constitute a step-in-aid of execution.

15. It is next contended that the present application should be treated as an application in continuation of the previous application. But this question was not raised in either of the Courts below, and the application in the previous execution case is not before us. Apart from that, in the present application for execution the decree-holder applied not only for attachment and sale of the properties mortgaged, but also for attachment and sale of the other moveables and immoveable properties of the judgment-debtor and for the arrest of 1 is person. In these circumstances, we are unable to give effect to this contention also.

16. The appeals must accordingly be dismissed. We make no order as to costs,


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