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Raj Gir Sahay Vs. Ishwardhari Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.660
AppellantRaj Gir Sahay; Ishwardhari Singh and ors.
Respondentishwardhari Singh and ors.; Raj Gir Sahay
Cases ReferredRaj Kumar Banerji v. Raj Lakhi Dabi
Excerpt:
execution of decree decree burnt - reconstruction of decree--rule of limitation for execution not suspended during re-construction--copy of decree not necessary to be filed with application for execution--contents of burnt decree--proof--evidence act (i of 1872), section 65, clause (c)--step-in-aid of execution, application for re-construction is not--limitation act (xv of 1877), schedule ii, article 179, clause (4). - .....the absence of the present appellant. on the 23rd of march 1905, the application out of which the present appeal arises was presented by the decree-holders for execution of the decree which they had obtained.3. the munsif dismissed the application for execution. on appeal his judgment has been reversed by the learned district judge.4. the first question which requires decision is whether or not the application is barred by limitation. this is a question which does not appear to have been argued in either of the courts below. under section 4 of the limitation act, however, we are bound to take notice of it specially as it appears to us that there is no, answer possible to the objection. the decree, as we have already stated, was obtained in june 1901 and the application for execution was.....
Judgment:

Mookerjee, J.

1. This is an appeal on behalf of the judgment-debtor against an order of the District Judge of Mozuffarpur by which he allowed execution to proceed on the basis of a decree which was obtained by the respondents against the present appellant in June 1901.

2. On the 19th of November 1901, the record room was destroyed by fire and the original of the decree in question was destroyed at the same time. In March 1902, the respondents made an application to have the decree re-constructed and on the basis of this application the decree appears to have been re-constructed. So far as we can make out, this re-construction was made in the absence of the present appellant. On the 23rd of March 1905, the application out of which the present appeal arises was presented by the decree-holders for execution of the decree which they had obtained.

3. The Munsif dismissed the application for execution. On appeal his judgment has been reversed by the learned District Judge.

4. The first question which requires decision is whether or not the application is barred by limitation. This is a question which does not appear to have been argued in either of the Courts below. Under Section 4 of the Limitation Act, however, we are bound to take notice of it specially as it appears to us that there is no, answer possible to the objection. The decree, as we have already stated, was obtained in June 1901 and the application for execution was not presented till the 23rd March 1905.

5. Under Article 179 of the second Schedule of the limitation Act, an application for execution of decree is to be presented within three years from the date of the decree It has been laid down by this Court in case of Golam Gaffar Mandal v. Goljan Bibi 25 C. 109 that the words date of the decree mean the date which the decree ought to bear under Section 205, Civil Procedure Code, that is, the date of the judgment, so that an application made more than three years from the date on which the judgment was pronounced would be barred by limitation. The present application, therefore, is manifestly barred by limitation, unless the application which was made by the decree-holders to re-construct the decree can be treated as an application in accordance with law to the proper Court to take some step-in-aid of execution of the decree within the meaning of Clause 4 of Article 179. In our opinion, that application cannot be so regarded. It was not necessary for the decree-holders to file a copy of the original decree with the application for execution. This was laid down in the case of Modhoo Dossia v. Nobin Chunder Roy 16 W.R. 25 and the same view has been subsequently adopted by Mr. Justice O'Kinealy in the case of Rajkumar Banerji v. Rajlakhi Dabi 12 C. 441 and by the learned Judges of the Bombay High Court in the case of Raja Ram v. Banaji Mairal 23 B. 311. The Code is perfectly clear on this point. Section 235, Civil Procedure Code, does not require that a copy of the decree is to be attached to the application for execution. Under Section 224, no doubt, a copy of the decree has to be forwarded if the decree is sought to be executed in a Court other than the one which made the decree. When, however, the decree is sought to be executed in the Court which made it, it is not necessary for the applicant to supply a copy of the decree. I he original decree which is in the record-room of the Court is sent for and execution is allowed to proceed on this basis. If the original decree is not in existence, it would be open to the party applying for execution to give secondary evidence of its contents under Section 65 of the Evidence Act, which provides that secondary evidence may be given of the contents of the document when the original has been destroyed or lost. Section 63 then provides that such secondary evidence may consist of oral accounts of the contents of a document given by some parson who has himself seen it. If, therefore, in the present case, the decree has been destroyed and it was not possible for the decree-holders either to obtain a certified copy of the decree or to produce the original, it was nevertheless open to them to present an application for execution, and it would have been open to them to prove the contents of the decree by oral evidence of the description mentioned in Section 63 of the Evidence Act. It was wholly unnecessary for them to apply for re-construction of the decree. Under these circumstances it is impossible to hold that the application for reconstruction was an application of the kind contemplated by Clause 4 of Article 179 of Schedule II of the Limitation Act. On these grounds we must hold that the application for execution is barred by limitation. The view we take, namely, that the application for re-construction of the decree is not an application of the description contemplated by Clause 4 of Article 179 is supported to some extent by the decision of this Court in Raj Kumar Banerji v. Raj Lakhi Dabi 12 C. 441.

6. The result, therefore, is that this appeal, must be allowed, the order of the Court below discharged and the application for execution dismissed. Under the circumstances of the case, we make no order as to the costs.

7. The respondents subsequently applied for review of the above judgment on the ground that notice of the appeal had not been served on them, and that they had, therefore, been prevented from appearing in support of the judgment of the lower appellate Court.

8. Babu Baldeo Narain Singh, for the Petitioners.


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