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Maulvi AptapuddIn (AftabuddIn in Takalatnama) Ahmed and ors. Vs. Jogendra NaraIn Tewari and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.231
AppellantMaulvi AptapuddIn (AftabuddIn in Takalatnama) Ahmed and ors.
RespondentJogendra NaraIn Tewari and ors.
Excerpt:
limitation act (ix of 1908), schedule i, article 182, clause (5)--execution of decree--application in accordance with law--valid application, whether can be invalidated by subsequent act of decree-holder. - .....before the fourth application for execution. the decree-holder prayed in that application that the legal representatives of the deceased judgment-debtor might be substituted in his place, after issue of notice to them, and that the decretal amount be realised by attachment of moveables. the court thereupon made an order that process-fee be paid within three days for service of notice on the legal representatives of the deceased judgment-debtor. the fee, however, was not paid and the execution case was dismissed on the 30th march 1915.4. the present application for execution was made on the 16th february 1917, and the question is whether the application of the 26th march 1915 was an application which saved limitation. that application was made within three years of the last previous.....
Judgment:

App. No. 319 of 1918.

1. The only question involved in this appeal is whether the application for execution of the decree is barred by limitation.

2. It is unnecessary to refer to the first two applications for execution. The third application was made on the 26th March 1912, and the 4th on the 26th March 1915.

3. It appears that the judgment-debtor died before the fourth application for execution. The decree-holder prayed in that application that the legal representatives of the deceased judgment-debtor might be substituted in his place, after issue of notice to them, and that the decretal amount be realised by attachment of moveables. The Court thereupon made an order that process-fee be paid within three days for service of notice on the legal representatives of the deceased judgment-debtor. The fee, however, was not paid and the execution case was dismissed on the 30th March 1915.

4. The present application for execution was made on the 16th February 1917, and the question is whether the application of the 26th March 1915 was an application which saved limitation. That application was made within three years of the last previous application. It was also made to the proper Court. The only question, therefore, is whether it was in accordance with law.

5. The Court below has held that it was not in accordance with law, because the legal representatives of the judgment-debtor were not substituted, as the process fee had not been paid as directed by the Court.

6. Order XXI, Rule 22, Civil Procedure Code, lays down that where an application for execution is made (b) against the legal representation of a party to the decree, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause on a date to be fixed why the decree should not be executed against him. That is what is required by law to be done. Now if the contention of the respondent is correct, namely, that in order that the application might be held to be in accordance with law the legal representatives of the deceased judgment-debtor must be already on the record, then these cannot be any application for execution in accordance with law, against the representatives of the deceased judgment-debtor on the last day of the three years, if the judgment-debtor happens to die on the last day, although the decree holder may be within his rights to make the application on such last day.

7. Then again, we do not see how the fact that process fee was not paid subsequently, as directed by the Court, could affect the validity of the application made on the 26th March 1915. If it was a valid application and one in accordance with law on the 26th March 1915, it could not be invalidated by any subsequent act on the part of the decree-holder, namely, the nonpayment of the process-fee. In the absence of any authority to the contrary, we think the application was in accordance with law within the meaning of Article 182, Clause (5), of the Limitation Act and, therefore, the present application is not barrrd.

8. There are, however, other objections raised by the judgment debtor, which have not been gone into by the lower Appellate Court.

9. The order of the lower Court must, therefore, be set aside and the case sent back to that Court in order that it may deal with the other questions raised in the case, and dispose of the case according to law.

10. Costs, one gold mohwr, to abide the result.

11. This judgment will govern the other Appeal (No 40 of 1919).


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