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Golam Mujahar Chowdhery and anr. Vs. Goloke Charan Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal78(1),25Ind.Cas.884
AppellantGolam Mujahar Chowdhery and anr.
RespondentGoloke Charan Das
Cases ReferredGadadhar Panda v. Shyam Churn Naik
Excerpt:
limitation act (ix of 1908), section 18 - exercise of right delayed through fraud, whether extends time--civil procedure code (act v of 1908), section 47, order xxi, rule 2, clause (2). - .....the first point is one which arises in reference to section 18 of the limitation act. there the learned judges say that even if it is established that the conduct of a decree-holder is fraudulent, the judgment--debtor is not entitled to obtain an extension of the time within which to make an application to the court under clause (2) of rule 2 of order xxi, because the judgment-debtor is not, by means of fraud, kept from the knowledge of his right to make the application within the meaning of section 18 of the limitation act but from the exercise of his right to make the application.' the learned judges in that case also pointed out that if there be such fraud, as was there alleged and as is alleged in this case, then it would be open to the judgment-debtors to institute a suit for.....
Judgment:

Woodroffe, J.

1. It appears to me that the two points which have been argued in this case are clearly covered by the decision in Biroo Gorsain v. Jaimurat Koer 13 Ind. Cas. 63 : 16 C.W.N. 123 : 16 C.L.J. 174. The first point is one which arises in reference to Section 18 of the Limitation Act. There the learned Judges say that Even if it is established that the conduct of a decree-holder is fraudulent, the judgment--debtor is not entitled to obtain an extension of the time within which to make an application to the Court under Clause (2) of Rule 2 of Order XXI, because the judgment-debtor is not, by means of fraud, kept from the knowledge of his right to make the application within the meaning of Section 18 of the Limitation Act but from the exercise of his right to make the application.' The learned Judges in that case also pointed out that if there be such fraud, as was there alleged and as is alleged in this case, then it would be open to the judgment-debtors to institute a suit for damages for the alleged fraud.

2. Then it has been contended before us that even if an application under Order XXI, Rule 2, was barred for the reason stated, such an application would lie under Section 47 and that we should convert this application into a suit under that section. The answer, however, to this argument is also given in the case to which I have referred.

3. The only point of difficulty which arises is whether or not the decision in Gadadhar Panda v. Shyam Churn Naik 12 C.W.N. 485 conflicts with the argument which has been laced before us on behalf of the respondent; but as to this the learned Judges say that when that case is analysed, they are of opinion that it does not support the contention of the appellant and that the learned Judges did not intend to lay down that although the period of limitation within which an application by the judgment-debtor under Clause (2) of Rule 2 of Order XXI is to be presented to the Court has expired, it is still open to him to secure an investigation of the same matter by an application under Section 47'. I also think that the contention that a party may be barred under Order XXI, Rule 2, and yet may move for the same relief under Section 47, is unsound.

4. These being the two points which have been argued before us, the appeal fails and must be dismissed with costs which we assess at two gold mohurs.

Mullick, J.

5. I agree.


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