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Syam Chand Maiti Vs. Baikuntha Nath Mandal and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal1003,47Ind.Cas.143
AppellantSyam Chand Maiti
RespondentBaikuntha Nath Mandal and anr.
Excerpt:
mortgage, suit on - decree absolute made on barred application, whether can be challenged in execution--civil procedure code (act v of 1908), section 48, applicability of, to execution proceedings in mortgage suit which was pending at the date of coming into force of the code. - .....of the transfer of property act. the present appellant appeared in that application to make the decree absolute and he is stated to have raised two grounds, namely, of payment and limitation. as the law was then under-stood according to the current of decisions of this court at that time, there was no period limited to make an order absolute in a foreclosure suit under the terms of the. transfer of property act. those decisions have subsequently been dissented from by the privy council. what happened in this case was this: the court held that there was no payment made by the appellant and apparently it did not give a decision on the question of limitation, because presumably the gentleman who conducted the case, recognising the existing current of decisions of this court, did not.....
Judgment:

Fletcher, J.

1. This is an appeal by a judgment-debtor against the decision of the learned District Judge of Midnapur, dated the 15th May 1917, reversing the decision of the Officiating Munsif of the same place. The two mortgagees obtained a preliminary mortgage decree against the appellant. The decree of the Court of, first instance was dated the 14th May 1902, and that decree was on appeal confirmed by this Court on the 19th August 1904. Subsequently, on the 5th July 1913, the order absolute was made under the terms of the Transfer of Property Act. The present appellant appeared in that application to make the decree absolute and he is stated to have raised two grounds, namely, of payment and limitation. As the law was then under-stood according to the current of decisions of this Court at that time, there was no period limited to make an order absolute in a foreclosure suit under the terms of the. Transfer of Property Act. Those decisions have subsequently been dissented from by the Privy Council. What happened in this case was this: The Court held that there was no payment made by the appellant and apparently it did not give a decision on the question of limitation, because presumably the gentleman who conducted the case, recognising the existing current of decisions of this Court, did not press and argue the point. However, the order absolute was made and now in execution Dr. Mitter, who appears for the judgment-debtor appellant, says that he is entitled to question the fact that the order absolute was not properly made and to urge that the Court ought not to have made the order because the application to make the decree absolute was barred by limitation. I do not agree with that view at all. It seems to be altogether a novel view that an order of the Court made in the presence of both parties and on a proper adjudication should in execution be challenged and that it should be said that the Court had no jurisdiction to make the order, on the ground that the application for making the decree absolute was barred by limitation. As a matter of fact, the Court had ample jurisdiction to come to the conclusion that the case was not barred by limitation. It is said that because the Court did not, in fact, decide that the application was not barred by limitation, therefore, the question is open in execution. There seem to be two answers to that. First of all it is quite clear that this point was not pressed. Secondly, even it was pressed, the order is conclusive. The case is altogether unsupported by authority. Moreover, the order absolute cannot be challenged in execution. The decision stated to support that proposition clearly does not support it.

2. Another point is raised that the present application for execution is birred under the provisions of Section 48, Code of Civil Procedure. There is a short answer to that also, and that is this: This suit was brought under the provisions of the old Code of Civil Procedure to which the corresponding section to Section 48 of the new Code did not apply, the proceedings being taken under the provisions of the Transfer of Property Act. it is quite clear that the mere fact of the coming into force of the new Code of Civil Procedure pending this suit does not make the new Section 48 applicable to those proceedings in execution.

3. The present appeal, therefore, fails and must ba dismissed with costs, one gold mohur.

Syed Shamsul Huda, J.

4. I agree.


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